ILMA Compoundings - May 2021 - 36

Continued from page 35
year not only left millions without
power and heat, but also caused major
shocks to refineries and downstream
users. If such storms do occur more
frequently, as climate change models suggest, then communities and
businesses across that region can plan
and make appropriate investments
to mitigate the effects or the recovery
time for all communities and businesses alike.
However, the cons may be significant. If science cannot lead the

Continued from page 34
on any product, opinion, cause
or person " could limit employees'
right to solicit " outside support
in improving their terms and
conditions of employment. "
* She said that a rule prohibiting
posting photos of co-workers
without their consent could limit
posting pictures of co-workers
who are engaged in protected
activities.
* Finally, McFerran argued that
a rule requiring employees to
forward telephone calls regarding
a current or former employee's
position or compensation could
be construed to limit responses to
any inquiry about an employee's
position or compensation.
With the pendulum swinging again,
it is a good time to make a fresh
review of a company's employee handbook or manual to see how its various
workplace rules and policies would
hold up under a challenge brought
under the Lutheran Heritage standard. Investigations into unfair labor
practice charges are expensive, and an
NLRB finding that a handbook rule

MAY 2021

| COMPOUNDINGS | ILMA.ORG

way in addressing or answering
disproportionate effects on minority
and low-income communities, then
politicians and bureaucrats will impose
their own ideas on resource distribution. While better public health for all
and resilient infrastructure should be
lauded, adding a harder-to-quantify
regulatory burden will harm people
through reduced job creation.
A BROADENED APPLICATION
Environmental equity is not new, but
how it is being used is new. The Biden
administration is trying to make it an

interferes with employee rights can
significantly affect the business and
can lead to supportive messages for
organizers trying to unionize a particular workplace. Accordingly, those
employee handbook rules and policies
that were previously adjudicated by
the NLRB under Lutheran Heritage, at
issue as discussed above from Medic
Ambulance, should be assessed. ILMA
members should work with their local
counsel in reviewing:
* Handbook rules that could
restrict employee advocacy, such
as requiring civility and courtesy,
or prohibiting " harassing " behavior that is not based on antidiscrimination considerations.
* Rules that prohibit negative, damaging, critical or disparaging statements about the employer, as well
as the workplace or co-workers.
* Policies that include actions for
failure to follow instructions,
walking off the job or other similar behavior.
* Policies that limit conduct, particularly outside of work, that may
be perceived as contrary to the
employer's business interests.

operational principle, rather than a
desirable outcome. The Biden administration 's application of the concept
to broader subjects, such as climate
change, will force stakeholders to use
a different prism in assessing proposed
rules from the EPA and other agencies.
Levetown serves as associate
counsel to ILMA through
Bassman, Mitchell, Alfano
& Leiter Chtd. He may
be reached at 202-466-6502 or
mlevetown@bmalaw.net.

* Rules on the use of the employer's
intellectual property, even for
fair uses.
* Policies restricting political activities, especially those that may be
related to workplace issues.
* Anti-loitering rules and other
workplace access restrictions for
off-duty employees.
* Broad confidentiality provisions, including rules treating
handbooks or policy manuals
as confidential, along with rules
restricting " sensitive " or " personal "
employee information.
The above list is not exhaustive. My
key takeaway is that employers should
consider whether their current employee
handbooks can withstand NLRB
scrutiny when the Boeing standard is
replaced. It is best to take advantage of
time now before the battle rages.
I look forward to seeing everyone
next month at ILMA ReEngage.
Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.

http://www.ILMA.ORG

ILMA Compoundings - May 2021

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