april2022 - 21

THE LABOR LAW ADVISOR
Are Your Employee
Handbook Policies Legal?
RICHARD D. ALANIZ
Senior Partner
Alaniz Schraeder Linker Faris Mayes, L.L.P.
ralaniz@alaniz-schraeder.com
Employee handbooks have long
been an essential workplace tool.
Regardless of size, all employers
should maintain a handbook. Handbooks
often provide an employer's
history as well as its mission statement
and guiding philosophy. They
spell out the rules what is expected
of employees and what the employer
will provide in return. They have
become ubiquitous and for the most
part non-controversial. However,
with the current majority on the
National Labor Relations Board
(NLRB or board) and even more
so its general counsel, employee
handbooks may once again become
a potential source of liability for
unsuspecting employers.
The National Labor Relations
Act (NLRA or Act) protects both
the " union " and " concerted " activities
of employees. In recent years,
with union activity substantially
diminished, the NLRB has focused
a great deal of time and attention on
issues involving what are referred to
as " concerted protected activities. "
The term refers to employees acting
together (in concert) on matters
related to their terms and conditions
of employment. Employees have
the right to discuss and engage
in advocacy regarding workplace
concerns and to act for " mutual aid
or protection. " It includes not only
employees acting as a group, but
also a single employee speaking or
acting on behalf of himself and others.
Any employer interference with
such concerted, protected activity is
HANDBOOKS OFTEN PROVIDE an employer's history as well as its mission statement
and guiding philosophy. They spell out the rules what is expected of employees and
what the employer will provide in return. But they can include risky policies.
considered a violation of the rights
of employees set forth in Section 7
of the NLRA.
Historically, under the concerted
activity framework, the
board has challenged employee
handbook rules and policies that
impinge on those employee rights.
Handbook rules on confidentiality,
inappropriate communications,
non-disparagement, social media,
media communications, civility,
respectful and professional conduct,
offensive language, camera prohibitions,
employee loitering and access
limits on off-duty employees, and
similar restrictions on employees
were frequently found unlawful.
In 2017, an NLRB majority
comprised of a majority of
members appointed by President
Trump significantly limited the
ability of the board to micromanage
handbooks. It did so in a case
called The Boeing Co., involving a
handbook rule restricting the use
of cameras in the workplace. Prior
to Boeing, the guiding principle on
the legality of handbook rules was
whether employees could reasonably
construe the rule or policy to limit
their right to engage in concerted
activities. The board used Boeing to
limit review to only those rules or
policies that either explicitly or as
applied restricted concerted activity.
In 2019, the board further refined
the new Boeing standard in a case
called LA Specialty Produce. That case
involved a media communications
policy that prohibited employees
from providing information when
contacted by the media. In finding
the rule lawful, the board majority
took the view that an " objectively
reasonable employee who is aware
of his legal rights but who also interprets
work rules as they apply to
the everydayness of the job " would
interpret the rule as addressing situations
where the media was seeking
an official employer response. In
other words, common sense should
play a role in the analysis.
The new general counsel,
Jennifer Abruzzo, a long-time
union attorney, has been actively
reviewing pending board cases to
select the proper vehicle to justify
a return to the former standard. She
has requested that interested parties
submit briefs on whether the Boeing
standard should continue to apply
using a pending case called Stericyle,
Inc. The rule change is therefore just
a matter of time.
In accord with the effort to
return to the former rule on handbook
provisions, the new general
counsel has also announced the
intent to expand the concept of
" concerted, protected activity "
well beyond its traditional limits.
Employee conduct that could be
deemed to qualify for protection
will include activity in support of
social justice issues such as Black
Lives Matter (BLM), Fight for $15,
transgender rights, support of
undocumented immigrants, and
similar matters not specifically
connected to their workplace.
The General Counsel framed it to
" include employees' political and
social justice advocacy when the
subject matter has a direct nexus to
employees interests as employees. "
And the board has already taken
action against two major U.S. retailers
under this new expanded definition
of concerted protected activity
as including political advocacy. The
NLRB Regional Office in Minneapolis
issued an unfair labor practice complaint
against a Home Depot branch
for enforcing a company-wide dress
code policy prohibiting workers
from displaying political messages
on their aprons against employees
displaying BLM slogans on their
aprons. Among the remedies that
the NLRB is seeking is that Home
Depot rescind its rule at its more
than 2,000 U.S. stores. The board
issued a similar complaint against
Whole Foods for prohibiting employees
from wearing face masks with
" Black Lives Matter " imprinted on
them. Both cases remain pending.
The likely return by the NLRB
to the former standard for assessing
the legality of work rules - whether
employees could reasonably
construe the rule as limiting
their right to engage in concerted
activities - should prompt employers
to carefully review their current
handbook rules to assure they are
legal. Defending against an NLRB
complaint can be a costly exercise,
and it could be all the more so if
monetary fines for violations ever
become a reality. ■
APRIL 2022 ■ www.CPAPracticeAdvisor.com
21
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