Page 18 - BusinessWest September 4, 2023

A New Chapter
It’s Time to Review Your Employee Handbook
BY JOHN S. GANNON, ESQ.
Last month, the National Labor Relations Board (NLRB) issued a deci- sion altering the standard used to determine whether employer hand- book policies and work rules infringe on employee rights in the work-
place. The NLRB will now use an employee-friendly test that asks whether workers could reasonably interpret the policy or rule as one that restricts rights protected under the National Labor Relations Act (NLRA), such as discussing wages and working conditions, or forming unions.
Put in plain, non-legalese terms, the decision significantly increases the likelihood that one or more of your handbook policies are unlawful in the eyes of the NLRB. It also applies to all private-sector employers — including those without a union presence. Violations can lead to federal penalties, lawsuits, and more. So now is as good a time as ever to review your existing employee handbooks and work rules in order to ensure compliance.
Background
Over the years, the NLRB has used a medley of tests when reviewing employee-handbook provisions to determine if a violation exists. Tradition- ally, the test shifts from employee/union-friendly to employer/management- friendly depending on whether the majority of board members are appointed by a Democrat or Republican president.
For example, in 2015, the ‘Obama board’ issued decisions and guidance suggesting that common and well-accepted work rules on topics like confi- dentiality and civility in the workplace (like rules prohibiting ‘picking fights’ and ‘insulting’ co-workers) were problematic. Then, in 2017, under the ‘Trump board,’ the NLRB essentially undid this by establishing an employer- friendly standard that “overruled past cases in which the board held that
“Put in plain, non-legalese terms, the decision significantly increases the likelihood that one or more of your handbook policies are unlawful in the eyes of the NLRB. It also applies to all private-sector employers — including those without a union presence.”
employers violated the NLRA by maintaining rules requiring employees to foster ‘harmonious interactions and relationships’ or to maintain basic stan- dards of civility in the workplace.”
The Work-rules Saga Continues
On Aug. 2, the NLRB issued its latest decision in this long-running saga on how to evaluate whether employee handbook provisions and work rules are unlawful. In a case called Stericycle Inc., the board, which has tilted toward the left under President Biden, adopted a new test to use when work- place rules and policies are challenged on the grounds that they interfere with or restrict employees’ rights
to join together and improve
terms and conditions of employ-
Handbook
>>
Continued on page 19
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