March 1, 2017
During the prior Administration, the National Labor Relations Board (NLRB) scrutinized employment policies contained in handbooks and policy manuals, and found many of the policies unlawful under the theory that they “chilled” the exercise of employees’ Section 7 rights under the National Labor Relations Act (NLRA). Virtually no category of policy was immune from challenge—the NLRB invalidated policies ranging from confidentiality, cameras, and e-mail usage to media relations, just to name a few.
Last week, however, the NLRB issued a decision offering a glimmer of hope for handbooks and policy manuals in the future. In Cellco Partnership d/b/a Verizon Wireless, 365 NLRB No. 38 (February 24, 2017), the NLRB invalidated several standard policies of an employer, relying on legal precedent developed over the past several years.
Importantly, one NLRB member, Philip Miscimarra, dissented in the decision because he seriously questioned the majority’s analysis. Significantly, Mr. Miscimarra recently became the Acting Chairperson of the NLRB, so his dissenting opinion signals that, in the future, the NLRB’s analysis of employment policies may not be as subjective as recently experienced. Instead of the NLRB’s current standard, Mr. Miscimarra advocated moving away from the current very subjective standard and adopting a more balanced analysis of employer policies:
I would adopt a standard under which the Board evaluates an employer’s workplace rule, policy, or handbook provision by striking a “proper balance” that takes into account both (i) the legitimate justifications associated with the disputed rule and (ii) any adverse impact the rule may have on NLRA-protected activity, and a “facially neutral” policy, rule, or handbook provision—defined as a rule that does not expressly restrict NLRA-protected activity, was not adopted in response to NLRA-protected activity, and has not been applied to restrict NLRA-protected activity—should be declared unlawful only if the legitimate justifications an employer may have for maintaining the rule are outweighed by its potential adverse impact on Section 7 activity.
In short, if the NLRB follows Acting Chairperson Miscimarra’s direction going forward, there is new hope for employee handbooks and personnel policies.
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