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Labor board’s handbook guidance eases employer concerns

Labor board’s handbook guidance eases employer concerns

The National Labor Relations Board’s return to pre-Obama era handbook rules restores a better balance between employer and employees’ rights and is a welcome relief to employers, experts say.

In June, NLRB general counsel Peter F. Robb issued a memo that provides new guidance on employer handbook policies and states that ambiguities should no longer be interpreted against the employer.

In the memo, Mr. Robb referred to the board’s ruling in December, in which the agency overturned a 2004 decision and held that Chicago-based Boeing Co. had lawfully maintained a no-camera rule in its employee handbook, which prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit.

The 20-page memo also covers rules including insubordination, confidential information, defamation, use of the employer logo, authorization to speak for the company and rules banning disloyalty.

The guidance “clarifies that some common types of handbook policies, such as policies that require collegiality, cooperation, teamwork and policies that prohibit common types of problematic conduct remain lawful, notwithstanding some decisions from the prior NLRB,” while still permitting employers to prohibit insubordination, certain types of disparaging statements and other conduct that can undermine an employer’s interests, said William J. Kishman, of counsel with Squire Patton Boggs in Cleveland.

Michael Starr, a partner with Holland & Knight L.L.P. in New York, said the guidance removes the possibility of employers being charged with unfair labor practice violations “for what are normal workplace rules and policies.”

“I think the major implication of this is that it restores the law to where it really had been about 15 or so years ago, before the labor board tried to regulate more intensely in this area,” he said.

William H. Floyd III, a partner with Nexsen Pruet L.L.C. in Columbia, South Carolina, said: “Under the prior administration’s interpretation, there was a lot of discretion and uncertainty as to which policies should be enforced, and what their content should be.” The new administration’s policy “makes it more balanced evenly, weighing the employer’s need to communicate information, and the employee’s rights under the (National Labor Relations Act).”

The guidance “means that more handbook rules are going to be found to be lawful,” said Barry J. Kearney, of counsel with Cozen O’Connor in Washington and former head of the NLRB’s advice division.

“Robb’s memo gives examples of those kinds of rules that will permit an employer, when he’s drafting new rules or updating his old rules, guidance as to how likely the general counsel would view them to be lawful or unlawful,” he said.

“There’s more of a balance in the way they’re trying to view things, so it’s not necessarily so pro-worker, and there is some recognition there” of business interests, said Fiona W. Ong, a partner with Shawe Rosenthal L.L.P. in Baltimore.

In the Boeing case, for instance, the approach now is not whether the rule could impact or chill worker rights, but whether it is likely to do so. “It brings back an element of common sense to the rule to what it was intended to do, rather than the most extreme position someone could take on the rule,” Ms. Ong said.

Dabney D. Ware, of counsel at Foley & Lardner L.L.P. in Jacksonville, Florida, said the prior rulings “were so convoluted that it created a lot of opportunity for companies to be held liable for something where they were really just asking everyone to play nice together.”



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