By Kerry Smith, Editor, St. Louis Construction News & Review Magazine
Last month’s guidance from the National Labor Relations Board – the federal agency that enforces the National Labor Relations Act – signals an easing of what had been more than eight years’ worth of hostile opinions that made it tough for employers to maintain employment handbooks and policy manuals in their workplaces.
St. Louis-based Jackson Lewis P.C. Principal Thomas E. Berry, Jr., an expert in labor and employment law, said the NLRB’s decision to take a less aggressive, more contextual stance on interpreting existing workplace policies in both union and non-union shops is likely good news for employers across the construction industry and elsewhere.
According to Berry, the new guidance from the NLRB – a follow-up to the agency’s December 2017 decision involving The Boeing Company – establishes a new legal standard for reviewing employer policies and will effect a more practical balance between a rule’s negative impact on employees’ ability to exercise their Section 7 rights and a rule’s connection to employers’ rights to maintain discipline and productivity in their work environments. Section 7 of the NLRA includes employees’ rights to join a union and to engage in collective bargaining.
“A lot of people think Section 7 of the Act applies only to unionized employees, but in truth it applies to any private-sector employees, whether they’re unionized or not,” said Berry. “During the Obama Administration, the NLRB took a very aggressive approach in looking at employee handbooks or policies to see if they potentially could be interpreted to infringe on these Section 7 employee rights. During that period, the board examined policies that appeared neutral on the surface, even though no employee(s) had been disciplined because of the company policy. Workplace policies that seemed reasonable and were not challenged were being struck down, and in many situations, it infringed upon reasonable expectations of employers,” he added. “It got to the point where a lot of employers were considering eliminating policies altogether.”
The Boeing case involved a company policy prohibiting employees’ video recording while at work, said Berry, a corporate policy set in place to protect confidential information. “Employers were seeing blanket policies in the abstract being struck down by the NLRB for being potentially unlawful, with no regard to the policies’ context or actual application.”
With a change in the presidential administration, in 2017 President Donald Trump appointed two new members, giving the five-member NLRB its first pro-business majority in eight years. And on June 6, the General Counsel to the NLRB issued an official memo, rolling back some of the restrictive policy-related rules. In addition to Section 7 rules, additional employer-written policy handbook topics and rules such as those about civility, insubordination, on-the-job conduct, protection of company or client information, misrepresentation of a firm’s products or services and non-cooperation clauses are now viewed by the NLRB as lawful until specifically challenged by an employee(s) via a specific situation or circumstance.
“Prior to this recent guidance from the NLRB, it had gotten to the point where employers were thinking of eliminating workplace policies altogether,” Berry said. “Now that the current board is looking for context, this spells good news for employers.”
Leonard Toenjes, president of the Associated General Contractors (AGC) of Missouri, agreed that the NLRB’s easing of its overall stance on company policy handbooks and manuals makes more sense and is less threatening to business owners and managers seeking to balance protections of their operations as well as their people.
“It’s always a fine line that employers are walking, especially from the construction side of things,” Toenjes said. “We’re balancing mandates that workers or clients may have with issues that our insurers have and in light of NLRB restrictions as well. Satisfying all these constituencies within a context of safety, security and proprietary issues can be a tough task indeed. This latest NLRB ruling that reestablishes protections for employers will definitely be beneficial for our industry.”