Tag Archives: Policies

Policy revision

Your Employee Policy Handbook Needs Revision (Again)

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Because of a recent decision by the National Labor Relations Board (NLRB), your employee policies probably need a major rewrite to avoid an unfair labor practices charge. This decision applies to big and small companies, those that are unionized and those that are not.

In August 2023 in Stericycle, Inc., the Board adopted a strict new legal standard for reviewing workplace rules. In order to protect the employees’ right to organize and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”, as Section 7 of the National Labor Relations Act requires, employers cannot promulgate, maintain or enforce work rules that tend to inhibit employees from exercising their rights under the Act.

What are those concerted activities that employees may engage in together? Just a few examples:

  • Employees discussing or complaining about their salaries, benefits, and other working conditions;
  • Employees refusing to work in unsafe conditions;
  • Employees complaining about unfair treatment by a supervisor;
  • Employees openly talking to each other, on social media, to the press or otherwise about their complaints about their employer;
  • Employees joining with co-workers to grieve any mistreatment, file claims with a governmental agency or otherwise protest any aspect of their jobs.

You as an employer cannot prohibit any of these activities or discipline an employee for engaging in them. Moreover, you cannot have policies that discourage these protected concerted activities.

Policy handbooks have come under scrutiny by the NRLB frequently in the last 10 years, but the Stericycle decision takes this scrutiny to a new level. If the NRLB finds that an employer’s policies have a reasonable tendency to chill employees exercising of their Section 7 rights, then it is presumptively an unfair labor practice.

The NRLB looks at the rules from the viewpoint of an employee who is economically dependent on the employer, rather than just applying a reasonable person standard. The employer can only rebut the presumption that the rule is unlawful by showing the policy serves a legitimate and substantial business purpose and it is as narrowly tailored as possible.

Continue reading Your Employee Policy Handbook Needs Revision (Again) →

Employee Handbook Policies You Can and Cannot Legally Include

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For the last several years, the National Labor Relations Board has been regulating which policies your employee handbook can and cannot include, even in your non-unionized workplace. At one point in 2015, there were dozens of handbook policies that were considered to have a chilling effect on an employee’s freedom to organize through “concerted activity”. Those policies were ruled to violate the National Labor Relations Act and as an employment lawyer, when I encountered them in a client’s employment policy manual, I either removed them or added a disclaimer stating that the policies weren’t intended to apply to acts protected by the NLRA.

Three years have passed and several court opinions have frowned on the NLRB’s formerly expansive disapproval regarding employee policies. In addition, the political leanings at the NLRB have shifted. Therefore, a distinctive change has recently occurred in the NLRB’s approach as to which employee policies an employer can enforce and which ones an employer can’t.

In a general counsel’s memo dated June 6, 2018, the NLRB instructed its staff that the following policies are okay to include in an employer’s policy manual and won’t necessarily be treated as an unfair labor practice:

  • Civility rules that require employees to avoid disparaging coworkers and using offensive, rude or condescending language to a coworker or customer;
  • Rules requiring that proprietary information and trade secrets of the employer and confidential information of customers have to be protected by employees (however, just saying everything the employee learns at work is confidential is too broad);
  • Rules prohibiting employees from aiding the competition, self-dealing and nepotism;
  • Rules against insubordination or non-cooperation that affects company operations (usually described as refusal to comply with a supervisor’s orders and/or perform work);
  • Rules prohibiting employees making intentionally dishonest statements or misrepresentations;
  • Rules prohibiting disruptive behaviors, such as “fighting, roughhousing, horseplay, tomfoolery, and other shenanigans.” Also included on the naughty list: “yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats, or outright violence.”
  • Rules prohibiting photography or recording in most business settings. “Employers have a legitimate and substantial interest in limiting recording and photography on their property. This interest may involve security concerns, protection of property, protection of proprietary, confidential, and customer information, avoiding legal liability, and maintaining the integrity of operations,” said the 2018 NLRB General Counsel. So, on balance, the NLRB has decided that it is okay for your policy to tell your employees “no photography, no recording”.

But that doesn’t mean that every rule in your employee handbook is acceptable. You still have to consider if your written policy is infringing on your employees’ rights to participate in protected concerted activity—the joining together of employees to discuss or protest the terms and conditions of their employment. If so, by enforcing that policy, you may be committing an unfair labor practice and you can be investigated and penalized by the NRLB.

Here are five policies that your employee policy manual that are still problematic and could get your company into trouble: Continue reading Employee Handbook Policies You Can and Cannot Legally Include →

Written Policies to Protect Your Business During the Opioids Epidemic

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With the current opioids epidemic raging across America, including in the Panhandle of Texas, employers are asking me if they can drug test current employees for prescription medications such as hydrocodone. Can a Texas employer try to prevent a workplace accident or death by testing when opiate use is suspected, or do you just have to hope that employee won’t hurt someone?

You have to consider the Americans with Disabilities Act when deciding if you are going to drug test your employees and how you should react to a positive test. The ADA protects an employee’s rights to lawfully take over-the-counter and prescription drugs to treat a disability.

However, the ADA doesn’t protect current substance abusers. So, since abuse of prescription drugs isn’t protected, how an opiate was obtained, how it is being taken, and if the employee is too impaired to work safely become crucial questions if your employee appears impaired.

Usually, I get a call from an employer about drug testing when an employee is falling asleep on the job, is slurring words, seems disoriented, has difficulty performing routine tasks, and/or is excessively absent, belligerent or erratic. At that point, drug testing may be appropriate, but I have to ask if the employer has laid the groundwork to do the drug testing and to respond appropriately to a positive test.

As with most employment law issues, you have to protect your business with well-written policies long before you are faced with an employee who appears to be high on Vicodin. Continue reading Written Policies to Protect Your Business During the Opioids Epidemic →

Employers Must Pay for “Unauthorized Overtime”

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I see many employee policy manuals that prohibit “unauthorized overtime”, but employers must still pay an employee his overtime pay, whether the time worked was authorized or not.

Employers need to understand that all governmental enforcement agencies, such as the Texas Workforce Commission (“TWC”) and the U.S. Department of Labor (“DOL”), treat paychecks as sacred and not subject to any reduction or withholding because of a disciplinary reason.

Unauthorized overtime can result in disciplinary action, like a written warning, a suspension or a firing, but not docking of a paycheck or any refusal to pay.

The TWC explains it this way in their publication “Especially for Texas Employers”:

Many employers feel that such [overtime] should not be payable as long as the employer has not authorized the extra work, but the DOL’s position on that is that it is up to the employer to control such extra work by using its right to schedule employees and to use the disciplinary process to respond to employees who violate the schedule.

Just saying in your employee handbook that an employee cannot work overtime without prior authorization is not sufficient. You as an employer need to take steps to closely monitor (and pay for) all hours actually worked. Continue reading Employers Must Pay for “Unauthorized Overtime” →