ILMA Compoundings - May 2021 - 34

COUNSEL COMPOUND

The Battle Over Employee
Handbooks Returns
By Jeff Leiter

I

LMA has been reporting on developments from the National Labor
Relations Board (NLRB) since the
Biden administration took office and
on how the Democrat-controlled
agency promises to alter a number of
employer workplace practices to favor
employees based on its interpretations
of the National Labor Relations Act
(NLRA). It is important to remember that the NLRA governs what
private-sector employers can say and
do concerning employees' " concerted "
or group activities, regardless of the
presence or absence of union representation. One area certain to come
under new scrutiny by the NLRB is
employee handbooks or manuals that
establish an employer's workplace
rules and policies.
Under the Trump administration,
the NLRB gave employers flexibility
concerning rules and policies in
their employee handbooks in a test
established in The Boeing Co. decision.
Boeing replaced the prior standard set
out in Lutheran Heritage VillageLivonia, in which the NLRB ruled
that an unlawful chilling effect occurs
whenever employees would reasonably
construe a workplace rule, such as
one in an employee handbook, to
limit their protected activities under
the NLRA. Following Lutheran
Heritage, the NLRB attacked employer
handbooks by invalidating rules or
policies regarding workplace norms
of behavior, including honesty and
respect. These subsequent decisions
subjectively defined rules that led to

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MAY 2021

| COMPOUNDINGS | ILMA.ORG

confusion among both employers and
employees. Boeing Co. brought the
battle to a halt, as the NLRB limited
its review of workplace rules and
policies only to those that implicitly or
explicitly restricted employee activities, and the board balanced those
alleged restrictions against employers'
legitimate justifications for regulating
conduct in the workplace.
The brief hiatus in the battle has
ended. A new Democrat majority
on the NLRB is expected to reverse
Boeing, returning to a much more
restrictive standard governing
employee handbooks. Acting General
Counsel Peter Sung Ohr fired the
first shot this past February, when
he revoked enforcement guidance
that limited cases the NLRB would
entertain under the Boeing Co. test.
Then, at the end of March, Ohr issued
another salvo with a new enforcement memorandum to the NLRB
regional offices in which he set out an
expansive view of protected concerted
activities under the NLRA. He also
called for vigorous enforcement
of " inherently " protected activities
that may not even be conducted in a
concerted fashion.
Lauren McFerran is the new NLRB
chair, and, as a Board member at the
time, she issued a strong dissent to the
majority's decision on Boeing. Since
the decision was issued, she has called
Boeing irrational, arbitrary and capricious, as well as an illegitimate attempt
to promote employers' suppression of
employee rights.

The most recent employer handbook decision was issued in March
2021, when the Board majority was
still in Republican hands. In Medic
Ambulance Service, the NLRB applied
the Boeing standard and rejected
challenges to six handbook provisions.
McFerran dissented, saying that she
would have found all six employee
handbook rules unlawful under
Lutheran Heritage. Let's look at the six
employee handbook rules that were
questioned:
*	 A rule prohibiting " disparag[ing]
the Company ... or other employees, " which McFerran said
could encompass " any public
statement or protest by employees
that criticizes company-imposed
working conditions, " or that criticizes managers or supervisors.
*	 A rule prohibiting " inappropriate
communications, " which she
argues could be construed to
cover a broad range of employee
complaints.
*	 A rule restricting disclosure of " confidential or proprietary information
regarding the company or your
co-workers, " which McFerran said
could restrict providing co-workers'
names, contact information, wages
and working conditions during a
union organizing campaign.
*	 McFerran argued that a rule prohibiting the use of the employer's
name " to endorse, promote,
denigrate or otherwise comment
Continued on page 36
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