Tag Archives: Employment Policies

The NLRB’s Holiday Gift to Employers

The new General Counsel for the NLRB recently issued a memorandum explaining that the NLRB would be moving swiftly to review several of the more controversial, and arguably anti-employer, decisions issued in the last eight years.  On December 14, thirteen days later, on the third night of Hanukkah, nine days before Festivus, and less than two weeks before Christmas, the NLRB took the first steps towards fulfilling this promise, when it issued two employer-friendly decisions that overturned two of the most controversial rulings of the NLRB under the Obama administration.  Happy Holidays, Employers!

First, in Hy-Brand Contractors the NLRB overturned the Browning-Ferris joint employer standard. When issued, the Browning-Ferris decision was shocking as it changed years of NLRB precedent. Through the Hy-Brand decision, NLRB has returned to the long standing test for joint employment that focuses on whether joint control is exercised (rather than merely reserved), whether such control has a “direct and immediate” impact on employment terms (rather than a merely indirect impact), and whether such control is not merely “limited and routine.”

Next, in Boeing Co. & Society of Professional Engineering Employees in Aerospace, the NLRB overturned the somewhat paternalistic Lutheran Heritage standard that has been used to invalidate policies in employee handbooks if it was determined by the NLRB that employees could “reasonably construe” the policy as barring them from exercising their rights under the NLRA. In application, the Lutheran Heritage standard was often applied in a way that caused employers to opine that the NLRB thought employees were lacking in intellect or common sense if they were to construe the policies as chilling or prohibiting their rights.  On pages 3-4 of the Boeing opinion, the NLRB states that the new standard will be as follows:

Under the standard we adopt today, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule. We emphasize that the Board will conduct this evaluation, consistent with the Board’s “duty to strike the proper balance between . . . asserted business justifications and the invasion of employee rights in light of the Act and its policy,” focusing on the perspective of employees, which is consistent with Section 8(a)(1).

As the result of this balancing, in this and future cases, the Board will delineate three categories of employment policies, rules and handbook provisions (hereinafter referred to as “rules”):

  • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement in this case, the “harmonious interactions and relationships” rule that was at issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civility.
  • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
  • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that prohibits employees from discussing wages or benefits with one another.

Although this standard is somewhat complicated, it should provide employers more confidence in their ability to have appropriate policies for their workplaces, including those that have business justifications which outweigh potential adverse impacts on employees’ protected rights.

In addition to the foregoing, on December 12, 2017, the NLRB issued a Request for Information Regarding Representation Election Regulations and in doing so provided employers with hope that the 2014 “quickie election rule” may eventually be a rule of the past.

Hopefully, the holiday gifts from the NLRB continue through the season.

This post was co-authored by Gail E. Farb and Jennifer Fowler-Hermes.

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Beyond the Hemline: Using Fashion to Recognize Employment Law Issues in the Workplace

There is a well-known saying that a person’s eyes are the keys to the soul. In the employment context, fashion choices are often keys to employee issues that not only impact employee performance and productivity, but also (should) alert employers to issues that, if not properly handled, will lead to legal liability. It may sound odd, but fashion in the workplace often provides insight into issues that implicate important employment laws, and employers should know what to look for.

When I say fashion in the workplace, I am not talking about the fashionista boss with unreasonable expectations from the 2006 movie The Devil Wears Prada (although that character has some amazing clothes), I am talking more along the line of Peter Gibbons from Office Space (1999). Peter stops coming into work on time, and when he does come in, he is dressed in casual clothing and even wears flip flops. Seriously folks, no one at Initech wondered what was up with Peter? No one investigated? I love the film, but in my Board Certified Labor and Employment attorney opinion, that is really a major plot flaw.

Consider how fashion and employment law are tied in the following scenarios:

  1. On his fifth anniversary with the company, Bob comes to work in a dress and asks to be called Barbara.
  2. Sue shows up to your conservative workplace on a Monday covered in tattoos.
  3.  Joe shows up to work wearing clothing with politically charged statements.
  4. You have an employee whose religious garb violates your company’s dress code policy.
  5. A pregnant employee comes to work with a photo of a pot plant on her shirt.
  6. Jane, who usually comes to work really put together, comes into work several days in a row wearing over-sized clothing and heavy makeup.
  7. You have an employee that appears to be wearing the same three outfits over and over.

Do you know how to properly handle these situations? Are you aware of what laws may be implicated by each? If you are interested in learning more, on Saturday, May 6, 2017, join me and another Sarasota-area employment lawyer at the Holiday Inn Lido Beach from 9:00 a.m. to 12:00 p.m., where participants will be part of an interactive presentation, including a fashion show presented contemporaneously with each scenario, that addresses the above situations (and others) and, in doing so, will review the basics of several labor and employment law issues, including but not limited to:

  • Religious Accommodation
  • Florida Domestic Violence Leave
  • Family Medical Leave Act
  • Americans with Disabilities Act
  • The Transgender Workforce
  • Gender Bias
  • Medical Marijuana
  • Employment Policies
  • Political Discourse in the Workplace

Although this presentation has been arranged by the Florida Association of Legal Support Specialists, it is open to anyone interested in attending. It has been approved for three General CLER credits. In addition, both HRCI and SHRM have confirmed with the Association that non-pre-approved attendees can obtain certification credits by directly requesting credits from the organizations using the information provided on the Attendance/CLE Certificate provided the day of the event.

Please visit falss.org for more information and to register.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558