The Changing Landscape of Employee Handbooks
Employee Handbooks are as ubiquitous as those dusty VHS anti-harassment tapes. Yeah, they’ve around for years and years, and no employer would think of being without one. But gradually over the past few years, the protection offered by handbook provisions against misbehaving employees saying “I didn’t know that was against the policy,” had begun to wane, at least as reviewed by the National Labor Relations Board (NLRB). Since the 2004 decision that created the Lutheran Heritage test, the NLRB had basically rendered unlawful and useless most of the carefully crafted employee manuals we HR folks had lovingly created. Their reasoning was that if any of the policies expressly or impliedly infringed on workers’ section 7 rights, (as interpreted by the NLRB, of course), they would be construed as being unlawful under the National Labor Relations Act (NLRA).
Some wise HR consultants and leaders I know were beginning to rethink the employer handbook, not only in its tone and mode of delivery but also in its content, as it had lost a lot of its protective value against risk. You could put together a very basic policy about confidentiality or civility at work, and it could be shot down by the NLRB. I am strongly in favor of creating handbooks that have actual value for employees who read them, and are consistent with an organization's values and culture, and in these days where new revelations of harassment and inappropriate conduct are continuously coming to light, more than ever we need a touchstone that is simple, clear and adamant about what conduct we want to promote (and prohibit) in the workplace and among our teams. But until now, organizations knew that when they began to regulate employees' behavior in a way that the board was likely to consider as against Section 7, they were running the risk of having a handbook provision deemed unlawful.
Enter the new administration’s NLRB. Chairman Miscimarra had already dissented in an earlier 2017 NLRB case, calling the Lutheran Heritage standard out as lacking in common sense, so it was no surprise that in the new case on December 14, 2017, The Boeing Company, a new standard was adopted, weighing the business interests of the employer against the Section 7 rights of the worker. As outlined in the National Law Review, the board adopted three categories that indicate how it will evaluate policies and rules of this kind going forward:
· “Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.”
· “Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
· “Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.”
Considering the language of "weighing” and “outweighing” going on in these tests, we see that the new Board is taking the needs of employers into account in a way it hadn't under the prior administration. As HR professionals who advise business leaders on employment policy manuals, it’s our job to do the important work of planning and determining the needs for employee policies, and carefully crafting handbooks that align with data-supported employer needs, like protection of trade secrets, safety of employees, a culture of respect and effective operations for the business. Luckily, we have at our fingertips many tools for making a handbook come to life via video, integrating it into our training and onboarding programs, and ensuring that relevant parts of it can be easily accessed through technology on an on-demand basis, right when the information is needed. We can do all this in a way that aligns with an organization's culture, workforce needs, and unique business requirements, and we can accomplish it in a way that respects workers' need to know information that will help them be successful, not just punish them after the fact when they make a mistake.
Those of us who had all but given up on meaningful policies and handbooks that actually impact workplace conditions will find that an employee handbook review is the perfect goal for early in 2018! Feel free to contact us if you'd like to know more.
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