NLRB Update Chris Bailey & Lauren Daming Greensfelder, Hemker - PowerPoint PPT Presentation

NLRB Update Chris Bailey & Lauren Daming Greensfelder, Hemker & Gale, P.C. October 24, 2019

The NLRB’s Handbook for Evaluating Your Handbook • The Boeing Company: – Balances rule’s negative impact on employees’ ability to exercise Section 7 rights against employer’s right to maintain discipline and productivity

Boeing categories • Category 1: Generally lawful rules – Civility rules – No-photography, no-recording rules – Rules against insubordination, non-cooperation, or on-the-job conduct that negatively affects operations – Disruptive behavior rules – Rules protecting confidential, proprietary, and customer information or documents – Rules against misrepresentation or defamation – Rules against using employer logos or intellectual property – Rules requiring authorization to speak for the company – Rules banning disloyalty, nepotism, or self-enrichment

Boeing categories • Category 2: Individualized scrutiny – Confidentiality rules relating to all “employer business” or “employee information” – Rules regarding disparagement of employer – Rules restricting communication with media generally – Rules banning off-duty conduct that might harm the employer – Rules against false or inaccurate statements • Category 3: Generally unlawful – Confidentiality rules regarding wages, benefits, and working conditions – Rules against joining outside organizations or voting on matters concerning employer

Post-Boeing: Clear Skies for Employers • LA Specialty Produce Co. – Confidentiality rule protecting client and vendor lists valid – Rule limiting media contact valid • Recent Advice Memos – Required cooperation in internal investigation valid – Requiring approval for use of company name in social media valid – Protecting confidential employee information valid – Prohibiting un-business-like conduct on or off company premises that negatively affects company services, property, reputation, or goodwill valid – Prohibiting posting disparaging information about employees on social media valid – Prohibiting posting derogatory information about the company on social media invalid – Prohibiting use of cell phones during working hours for personal use invalid

Is profanity still protected? • Board has invited briefs on when profane and sexually or racially offensive language loses protection • D.C. Circuit recently expressed concern with current Board rules on this topic

Get Off My Lawn! • Facially neutral and uniformly enforced non- solicitation policy that prohibits nonemployee union organizers from private property areas accessible by the public is lawful.

Did We Just Become Joint Employers? • Under newly proposed rule an entity is only a joint employer if it actually exercises control over any of the following – Hiring or firing of employees – Employee work schedules or working conditions – Determining employees’ rates and method of pay – Maintaining employee personnel records. • Reverses 2015 NLRB decision

Independent (Contractor) Day • Individuals with an “entrepreneurial opportunity for economic gain” are likely independent contractors rather than employees. • Reverses 2014 NLRB decision

SCOTUS Alert • Kisor v. Wilkie (9-0) – Auer deference: Courts defer to an agency’s reasonable reading of its own genuinely ambiguous regulations. – New guidelines • Is the regulation genuinely ambiguous? • Is the agency interpretation reasonable? • Is the agency interpretation entitled to controlling weight?

An Epic holding • Individual arbitration agreements and class action waivers are valid – Epic Systems v. Lewis (5-4) – Congress has instructed in the Federal Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the National Labor Relations Act suggests otherwise.

An Epic encore • Prime Healthcare Paradise Valley: – Arbitration agreements that can be reasonably construed to prohibit employees from filing ULP charges are unlawful under the NLRA. • Cordua Restaurants – Employers may inform employees that refusing to sign a mandatory arbitration agreement will result in discharge – Employers may develop mandatory arbitration programs in response to class/collective action

Elections Have Consequences • NLRB recently announced new rules related to the election/representation process – Replace “blocking charge” policy – Modify voluntary recognition bar and reinstate notice period – Modified construction industry rules • Reverses 2014 rules • NLRB has not proposed new rules to repeal “ambush” elections, but they are expected.

More To Come? • Use of employer email for union purposes • Confidentiality regarding internal investigations • Dress codes that restrict display of union insignia • Profanity

Questions? Lauren Daming Chris Bailey 314.345.4768 314.345.4727 ldaming@greensfelder.com tcb@greensfelder.com