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More Labor Board Overreach

An employee handbook, that staple of the first day on a new job, seldom contains many surprises.

While such handbooks are not exactly page-turners, they lay down important ground rules between employer and employee. They typically contain some common provisions, such as benefits and leave policies, safety practices, standards of conduct and conflict-of-interest guidelines. Except for the odd outlier, most of these policies fall well within an industry’s business norms. With the names stripped out, it would often be hard to tell one company’s handbook from another.

Yet the humble employee handbook may as well be the business world’s version of the Alien and Sedition Acts, according to a memorandum the National Labor Relations Board issued in March.

The memorandum culminates a trend in which the NLRB has pursued a variety of claims that employee handbook policies violate Section 7 of the National Labor Relations Act. Section 7 generally concerns activity in which an employee or a group of employees seek improved pay and working conditions, regardless of whether they are part of a union.

As explained in an alert issued by the law firm Moses & Singer LLP, the Board has scrutinized “seemingly innocuous policies” for the slightest whiff of a suggestion that someone, somewhere, sometime, might try to use a policy to restrict activity protected by Section 7. While disheartening for anyone who has ever either operated a business or been accused of possessing simple common sense, this aggressive tactic is not surprising considering the source.

The current NLRB, as reconstituted by President Obama, self-evidently sees its mission not as promoting the right of workers to organize if they choose, but as promoting the actual organization of workers. The former is a prerogative that is codified and protected by law; the latter is the result of priorities that have been warped, primarily by the political debt the Democratic Party owes to labor union leaders. As private sector union membership has steadily declined into the single digits (hitting 6.6 percent in 2014), the NLRB has repeatedly shown itself either incapable of fairly reading and enforcing the law or uninterested in doing so.

As Moses & Singer’s alert details, the policies under fire from the NLRB include requirements that workers treat one another respectfully and bans on pins or clothing that spread messages that customers or co-workers might find offensive. Unless specific exceptions are made for discussion or messages protected by the broadest possible reading of Section 7, the NLRB is ready and quite willing to declare the entire policy a violation of employee rights.

The Board’s zeal already puts employers in a bind, in that such overreaching declarations could leave policies stuck between contradictory legal obligations. For instance, lifting restrictions on message apparel could lead to a workplace that runs afoul of civil rights laws that hold employers responsible for ensuring that employees who are protected by those statutes do not face a hostile work environment. And, as Gregory Millman pointed out at the Wall Street Journal, NLRB attacks on nondisclosure agreements and anti-discrimination policies put the Board on “a collision course with the compliance profession.”

Beyond these concerns, however, the broader problem is that the NLRB is more concerned with getting employees into unions than it is with enforcing existing law. When a body interprets a simple policy that employees treat one another with respect as potentially infringing on protected “spirited or heated discussions” about union matters, it’s clear that something has gone very wrong.

As the attorneys at law firm Vedder Price pointed out in response to this memorandum, “The Board has issued a number of decisions that have left employers scratching their heads, struggling to find a way to address key operational concerns without committing an unfair labor practice.” The difference between acceptable and unacceptable handbook policies, so far, seems one that is largely impossible for anyone outside the NLRB to parse beforehand. That isn’t how the law is supposed to work - but it makes for an effective way to keep employers off-balance, if that is your real aim.

It will take some time for the NLRB’s overreach to either be litigated back within the bounds of sanity or to be corrected by future board members, who will most likely need to be appointed by a non-Democratic president. In the meantime, as the report from Moses & Singer notes, employers will simply have to figure out how to run a safe, sane and productive workplace under the omnipresent threat of litigation from a labor board whose actual interest is in pushing a political agenda, rather than in allowing workers and their bosses to get on with business.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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