Workplace rules are back, baby!

Peter Robb, General Counsel for the National Labor Relations Board (and my new hero), issued a memorandum on Wednesday that employers should love. Mr. Robb has declared that nine standard employer policies will now be presumed lawful under the National Labor Relations Act.

The memorandum was based on the Board’s decision in The Boeing Company, issued in December 2017. Before Boeingthe NLRB under the Obama Administration had taken the position that these policies were unlawful because they could have a “chilling effect” on employees’ exercise of their rights to engage in “protected concerted activity” under Section 7 of the NLRA.

So, without further ado, here are nine standard employment policies that the Board says are legal again, absent evidence that they’re being applied to protected concerted activity. (Welcome back!) I’ll also go over workplace rules that continue to violate the NLRA, and workplace rules that will be evaluated on a case-by-case basis.

Workplace rules that are presumed lawful

No. 1: Civility rules. The Equal Employment Opportunity Commission must be happy about this one because their proposed guidance on workplace harassment recommended civility training for employees as a harassment-prevention measure. The EEOC had to include a footnote that its recommendation could be problematic from an NLRA standpoint. (I’d been recommending to clients that they restrict civility training to management until this conflict between the EEOC and the NLRB was resolved.)

Conflict hereby resolved! According to the General Counsel, an expectation of civility does not interfere with employees’ right to engage in protected concerted activity because they can almost always criticize the employer, or individual supervisors, in a civil manner.

No. 2: No photography, no recording. Although there are occasions when employees may want to photograph or record working conditions or labor protests, the General Counsel says, for the most part rules prohibiting unauthorized recordings have no impact on Section 7 rights and therefore are lawful. However, “a ban on mere possession of cell phones at work may be unlawful where the employees’ main method of communication during the work day is by cell phone.” In other words, the ban should be on unauthorized recording, not on possession of a device that can record.

No. 3: Bans on insubordination, non-cooperation, adversely affecting operations. “An employer has a legitimate and substantial interest in preventing insubordination or non-cooperation at work. Furthermore, during working time an employer has every right to expect employees to perform their work and follow directives.”

Duh. It’s sad that this even had to be said, but thank you, General Counsel Robb, for saying it.

(Of course, if the “insubordination” is engaging in protected concerted activity, then the application of the rule would violate the NLRA.)

No. 4: Bans on disruptive behavior. Employers again have the right to prohibit “fighting, roughhousing, horseplay, tomfoolery, and other shenanigans.” Also, “yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats, or outright violence.”

There may, however, be instances when some of this activity is associated with a strike or walkout and may be protected. And you can’t ban strikes or walkouts.

No. 5: Protecting confidential and proprietary information, and customer information. Yes, employers, it is again legal for you to prohibit employees from disclosing your confidential and proprietary information. “In addition, employees do not have a right under the Act to disclose employee information obtained from unauthorized access/use of confidential records, or to remove records from the employer’s premises.” (Emphasis added.) To be lawful under the new standard, the employer should ban the unauthorized access or disclosure of confidential employee information rather than flatly banning disclosure of any employee information.

No. 6: Bans on defamation or misrepresentation. According to the General Counsel, because “defamatory” statements or “misrepresentations” imply some level of deliberate falsehood or misleading, “Employees will generally understand that these types of rules do not apply to subjectively honest protected concerted speech.”

No. 7: Bans on unauthorized use of company logo or intellectual property. “Most activity covered by this [type of] rule is unprotected, including use of employer intellectual property for unprotected personal gain or using it to give the impression one’s activities are condoned by the employer,” the memorandum says. And I love this:

“Employers have a significant interest in protecting their intellectual property, including logos, trademarks, and service marks. Such property can be worth millions of dollars and be central to a company’s business model. Failure to police the use of such property can result in its loss, which can be a crippling blow to a company. Employers also have an interest in ensuring that employee social media posts and other publications do not appear to be official via the presence of the employer’s logo.”

No. 8: Requiring authorization to speak for the employer. Yet another “duh” moment: “Employers have a significant interest in ensuring that only authorized employees speak for the company.”

No. 9: Bans on disloyalty, nepotism, or self-enrichment. Even the Obama Board didn’t have much of a problem with employer rules that banned (or required disclosure of) conflicts of interest, or employees who had financial interests in competitors of the employer. The Trump Board agrees.

Workplace rules that are presumed unlawful

The memorandum lists two types of employer rules that will continue to be found unlawful, and I believe most employers are already aware of these:

  • Prohibiting employees from discussing or disclosing information about wages, benefits, or other conditions of employment.
  • Prohibiting employees from joining outside organizations or “voting on matters concerning” the employer. 

These rules are directly related to activity protected by Section 7 of the NLRA. Therefore, they are presumed unlawful, and NLRB Regional Offices are instructed to issue complaints “absent settlement.” (The Regional Offices do have the option of asking for advice from the Office of the General Counsel if they think special circumstances apply.)

Workplace rules that require case-by-case assessment

The memorandum also discusses some “gray area” rules, which may or may not violate the NLRA depending on the circumstances. The following types of rules will be submitted to the Office of the General Counsel and evaluated on a case-by-case basis:

  • “Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment . . . and do not restrict membership in, or voting for, a union.”
  • Broad or vague “employer confidentiality” rules that don’t focus on confidential and proprietary, or customer, information and that don’t specifically restrict Section 7 activity (discussion of wages, benefits, or other terms and conditions of employment).
  • Rules prohibiting disparagement of the employer, as opposed to disparagement of employees.
  • Rules restricting use of the employer’s name, rather than just its logo or trademarks.
  • Rules that prohibit employees from speaking to the media or third parties at all (as opposed to communications to third parties where the employee purports to represent the employer).
  • “Rules banning off-duty conduct that might harm the employer.” A little vague.
  • “Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements) . . ..”

For the past several years, employers have been struggling to comply with the Board’s interpretations while retaining the right to maintain some semblance of order in their workplaces. The General Counsel’s memorandum is a giant step in the right direction.

Article written by: Robin Shea, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP

Originally posted on thinkhr.com

As an increasing number of Baby Boomers retire and leave the workforce, millennials are positioned to take on more leadership roles in the business world. Millennials bring with them a unique and evolving knowledge of technology and innovative HR practices that differ greatly from their Baby Boomer predecessors. As managerial roles are transferred from the Baby Boomer generation to millennials, forward-thinking businesses will create plans that adapt to the innovative processes and practices millennials bring to the table. Worthwhile risks and changes must be made to ensure companies keep up with their rapidly evolving competitors. To successfully transition millennials into top management positions, here are a few factors companies should keep in mind.

Millennials are technology-driven.

75% of millennials believe that technology helps them operate more efficiently in the workplace. Millennials are the first generation to truly incorporate technology as an imperative tool for maximum efficiency. Millennials look for efficiency, digital communication, and mobility founded in technology in the workplace, and use of technology helps facilitate innovation, engagement and clarity.  Baby Boomers in management who are getting ready to hand over the reins to their younger counterparts can facilitate a smooth operational transition by embracing new systems and processes led by technology.

Efficiency is key.

Millennials have grown up in a fast-paced culture where new technologies are constantly being developed, and because of this they find it natural to lean on technology to efficiently tackle daily work tasks. As opposed to previous generations, millennials are used to instant gratification and desire work to be completed in the most practical and timely manner. One example of state-of-the-art technology is automated task management systems which allow you to complete work ahead of time. For example, social media scheduling platforms like Hootsuite allow you to schedule posts ahead of time and select when you want them to post automatically. The automation process creates a more efficient way to complete time-consuming, yet simple tasks.  Another task management tool is Asana. Asana provides a single outlet for companies to manage projects, assign tasks and track progress, all through one system. Asana ensures a safe and organized portal for your company to complete tasks in the most practical manner.  Invest time in researching technological tools your millennial employees find helpful in their day-to-day work, and start implementing them now.

Digital communication is here to stay. 

Communication is vital to facilitating an engaged company culture. Being able to communicate well with not only clients, but with employees, is crucial. Millennials have grown up utilizing technology as a main form of communication, and they have mastered the art of making it work for them in the office as well. The mass amount of information that must be learned when implementing a new technology company-wide can be overwhelming, and keeping track of relevant news within your company can be difficult. To create an organized and effective internal communication strategy many companies are turning to social intranet software. This type of software creates a portal that keeps all of the company’s internal information in one place making mass communications easier to streamline. Digital communication fosters more efficient and timely transfer of information and problem solving. The impact of incorporating digital technology reaches beyond the office and can even help you prepare your employees to be social media advocates for your brand in their off time.

Mobility is the new norm. 

One of the most attractive assets of technology is mobility. Technology has completely disrupted the workplace by allowing employees to work anywhere at any time. Employees no longer have to complete their typical workday in the office. Working from home or remote locations provides room for great work/life balance and creative inspiration. A prime example of an effective technology when it comes to remote work and flexible hours is video conferencing through apps like Skype or FaceTime. By incorporating video conferencing, companies can easily expand their client base country wide and even internationally, at a much more cost effective price.

As millennials continue to take over the workforce and we see more innovations and improvements made to current technology, be sure your company stays up to date on the latest trends. Ensuring your employees are engaged with and fluent in technologies that are being globally implemented is vital to your company’s success in this digital age.

Kathy! You are amazing! I was speaking with Dr. Abel today re a patient and on his own he brought up how you were able to fix his wife and daughter’s insurance in less than 24 hours AND you were so NICE and PROFESSIONAL. He then said you were AMAZING. I absolutely love working with you, Ron, and the entire gang! Just wanted to pass this on - and again thank you for all you do for us!!!!

- Office Manager, Surgical Center in San Francisco

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