April 20, 2016
NLRB Ruling Invalidates Employer Handbook Policies - Wait, What?
Those who follow employment law trends know that in recent years, the National Labor Relations Board (NLRB) has been scrutinizing various provisions in employers' policies and handbooks for possible violations of Section 7 concerning employees' "protected, concerted activities." In case you don't already know, Sections 7 and 8 of the National Labor Relations Act apply to all employers, not just those where unions are present. "Section 8" says that employers cannot have rules which limit, restrict, or could reasonably be construed to "chill" employees from engaging in discussions and interactions about terms and conditions of employment, when this is done for the employees' "mutual aid and protection" (which might include organizing a union to bargain collectively, although it can also include lesser activities, such as approaching management to change a working condition). For example, hopefully you already know this, but the NLRB says that an employer cannot have a general rule prohibiting employees from discussing their wages and salaries, because that might interfere with the employees' "protected, concerted activities."
In the last year or two, the NLRB has been expanding its list of prohibited policies to include numerous policies which most employers would find to be necessary, useful and meaningful. In fact, many would say that the NLRB is taking its interpretations far too far. The NLRB can become involved if an employee is terminated because of a violation of such policies, and the NLRB can not only order the employer to withdraw the policy, but it can also order the employer to reinstate the dismissed employee.
A recent NLRB decision is important for a couple of reasons. First, the rulings show how innocuous, innocent, or even important employer policies may be found in violation of Section 8. Second, the decision contains a lengthy "dissent" by one of the members of the Board, who recognizes the problems caused by the recent rulings, and who proposes a variation on the applicable tests. If the NLRB becomes more employer-oriented in coming years (such as, for example, if national elections result in more employer-favorable elected officials), then the dissenter's reasoning and proposals could become the applicable rules, reversing the string of recent decisions.
For these reasons, this recent decision is worth the read. It is called William Beaumont Hospital and Jeri Antilla, a decision rendered on April 13, 2016. The case involved nurses who were terminated from employment at a hospital due to policy violations regarding bullying in connection with an investigation into the death of a newborn at the hospital. While the Administrative Law Judge ruled that the terminations were ultimately justified, he also ruled that certain hospital employment policies violated the NLRA, and they were ruled invalid. Further, the 3-member panel of the NLRB not only upheld these rulings, but it also went further and struck other policy provisions as invalid.
What were the policy provisions which violated Section 8 of the NLRB? They will be quoted below, and you can decide whether they would "chill" employees from engaging in protected, concerted activities:
Employee conduct will not be tolerated it if "impedes harmonious interactions and relationships."
Unacceptable employee conduct includes: "Verbal comments or physical gestures directed at others that exceeds bounds of fair criticism."
Or, "Negative or disparaging comments about the moral character or professional capabilities of an employee or physician, made to employees, physicians, patients or visitors."
Or, "Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork."
The NLRB found that these quoted policies were in violation of the NLRA's prohibitions against policies which would "chill" employees from engaging in "protected, concerted activities."
What do you think? Stay tuned, because I have a feeling that these types of rulings will come under more and more scrutiny.