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Legal Update

    Human Resources Group of West Michigan

    Legal Update – September 2018

    By Nathan D. Plantinga and Andrew A. Cascini

    Miller Johnson

    Employee dignity policies are once again “cleared for landing”:  Practical Takeaways in the months following the NLRB’s Boeing Company Decision

    Most human resources and labor relations professionals would agree that from the perspective of an employer trying to do business, 2008 to 2016 was a bit of a dark age for the National Labor Relations Board.  During this period of time, the Board unveiled such new “innovations” as micro unit bargaining, a highly expansive “joint employer” definition, the so-called “quickie elections” rule which made the process of conducting union elections move with unprecedented speed, and an extremely broad reinterpretation of what constituted concerted activity even in a non-union environment.  But from our firm’s vantage point as management-side employment and labor counselors, one of the Board’s curveballs inspired more anxiety than all of those legal changes listed above:  the employer handbook policy rules.

    Perhaps we should provide a trigger warning, but a quick recap of how this area of law developed during the Obama-era Board is probably warranted.  Between 2008 and 2016, the Board took a 2004 decision called Lutheran Heritage Village-Livonia and began interpreting its holding very . . .  creatively.  In Lutheran Heritage, the Board held that an employer committed unlawful interference under Section 8(a)(1) of the Act if it promulgated a workplace rule or handbook policy which could be “reasonably construed” by employees to stifle their statutorily protected conduct to engage in protected concerted and union activity.  This meant, for example, that an employer would not only violate the Act if it fired an employee for discussing his or her salary with other employees, but the employer would also independently violate the Act if it maintained a work rule prohibiting employees from discussing their salaries with each other even if no employee had ever actually been disciplined for that conduct.  And this interpretation of Section 7 is logical – the rule itself could interfere with an employee’s ability to engage in protected concerted activity if he or she refrains from doing so because he or she thinks the employer might take some adverse action, so the Board held that the promulgation of the rule would be just as unlawful as its enforcement.

    Sounds fair, right?  It very well might have been.  But the term “reasonable” – as in what an employee could “reasonably construe” to prohibit the exercise of protected activity – can mean very different things to different people.  And the Board used the flexibility inherent in that term to make mincemeat of the word “reasonable,” holding that a whole host of seemingly-innocuous handbook policies were unlawful under the Act.  Employers were taken to task, for example, for maintaining workplace dignity rules. In one particularly egregious example, an employer was held by the Board to have violated federal law by maintaining a policy requiring employees to maintain “harmonious” workplace relationships.  Under the Board’s logic, that could be construed to prohibit employees from engaging in something like a union election – after all, don’t those cause a lot of disruption?

    In a post-Lutheran Heritage world, most employers felt it was nigh-impossible to Board-proof employee handbooks, because it was extremely difficult to predict which rules some employee somewhere at some time might feel chilled his or her protected activity.  So our firm got a lot of frantic phone calls asking if all employee conduct rules should be thrown away.  Our advice typically was that it was nearly impossible to Board-proof a handbook, and that it was folly to try.  So we would usually advise our clients to eliminate language that actually prohibited Section 7 activity, and carefully review language that could with counsel so it could be drafted in such a way to minimize risk.  Employers have businesses to run, after all, and we felt that the Board would someday come around and respect employers’ legitimate business reasons for establishing most civility rules.

    If you followed our advice, pat yourself on the back.  In December of 2017, the Board overturned Lutheran Heritage in a new decision called The Boeing Company.  In that case, the Board explicitly recognized the bind they’d placed employers in during the prior decade.  They also reasoned that this instability and uncertainty about which rules could be maintained and which could not also had an adverse impact on employees, who were “disadvantaged when they are denied general guidance regarding what standards of conduct are required and what treatment they can reasonably expect from coworkers.”  In the end, under Boeing Company, the Board has now held that an employer handbook policy or work rule will be held to be lawful if:  (1) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of rights under the NLRA; or (2) the potential adverse effect on protected rights is outweighed by the employer’s legitimate business justifications for maintaining that rule.

    The rule from Boeing Company results in the following practical takeaways:

    • Employee dignity policies are no longer radioactive, and can be lawfully maintained in most circumstances as long as they further a legitimate business interest for the employer.  If you kept them in your handbook, take the time to review them now to ensure that they’re as robust as you would like them to be while having room to breathe under Boeing Company.  And if you omitted them over the prior decade out of an abundance of caution, it might be time to reintroduce some of them now.
    • In order to be lawful, however, a work rule must still be facially neutral.  That means rules can’t explicitly prohibit some right that is affirmatively protected under the Act.  So it’s probably lawful to maintain a rule requiring employees to prohibit behavior “that is rude, condescending, or otherwise socially unacceptable.”  But it’s unlawful to maintain a rule prohibiting employees from discussing their salaries or rates of pay with other employees.
    • There’s a difference between maintaining a rule and applying it, and employers must respect that.  Even a rule that is lawful to maintain because it is facially neutral can be applied in a way that is retaliatory or that interferes with protected activity.  If, for example, an employer applies a rule prohibiting “socially unacceptable” behavior only against employees discussing union activity, the application of the rule will still violate the Act.

      For questions about this article or other matters, please contact the authors of this article:

      Nathan D. Plantinga (616) 831-1773; plantingan@millerjohnson.com

      Andrew A. Cascini (616) 831-1705; cascinia@millerjohnson.com

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