Question of the Month
Question: We are in the process of revising our employee handbook. Are there any anticipated new laws that will require policy changes in early 2018? If so, we will probably wait for those new policies before finalizing the handbook.
Answer: It is not easy to predict changes to laws or regulations, particularly when there has been a lot of activity in the courts and in Washington recently. With that said, in mid- to late December 2017, the National Labor Relations Board (NLRB) was active in overruling several decisions that significantly impact employers. One decision, Boeing Company and Society of Professional Employees in Aerospace, IFPTE Local 2001 [download], overruled previous NLRB precedents that, in recent years, resulted in successful challenges to employer policies, workplace rules, and handbook provisions for the indirect impact they had on protected concerted activity. In previous cases, some of those challenges related to something other than activities that are protected under the National Labor Relations Act (NLRA). For example, in one case, the policy in question required nurses and doctors in a hospital to foster “harmonious interactions and relationships.”
As you can imagine, cases using the standard adopted in prior NLRB decisions caused a lot of confusion and uncertainty for employers, as it was unclear how they could create a safe and harmonious workplace without being challenged with labor law violations. The NLRB’s December 14, 2017 decision created more predictability for employers by establishing a new standard for evaluating company rules that consider the extent of potential impact on NLRA rights and the business justification for creating those rules. To help employers make sense of the new standards, the NLRB established three categories of rules (providing examples of each) and how they will be analyzed or interpreted by the NLRB in future case.
This decision may provide a good opportunity to re-evaluate your handbook provisions and other employer policies and make updates. We recommend you work with counsel to help analyze any new provisions using the standards established in the case.