Adam C. Abrahms, Member of the Firm in the Employment, Labor & Workforce Management and Health Care & Life Sciences practices, in the firm’s Los Angeles office, was quoted in Law360, in “Workplace Rules and Trump’s NLRB: What Passes Muster?” by Braden Campbell. (Read the full version – subscription required.)
Following is an excerpt:
Although it’s been more than a year since the National Labor Relations Board adopted a more business-friendly test for deciding whether employee handbook rules violate federal labor law, employers are still unsure how the new standard applies.
The new test, which came in a case involving Boeing, gives businesses an opportunity to justify rules that restrict workers’ rights to engage in group activity, in contrast to the prior, more rigid Lutheran Heritage Village-Livonia standard. But the board has been slow to flesh out the new standard, leaving businesses unclear on how to audit their employee handbooks for National Labor Relations Act conflicts.
“There’s still a lack of clarity, and I think the board is struggling with trying to unwind what was over a decade’s worth of really muddled analysis of these types of employee policy issues,” said Adam Abrahms, an Epstein Becker Green attorney who advises businesses on labor law.
Here’s a look at the issues businesses must grapple with when assessing whether their workplace rules will stand up in the current legal climate. …
Striking a Balance
The board has issued a few rulings and guidance memoranda fleshing out the standard — it’s said rules barring workers from taking pictures without permission are presumptively legal, for example — but the spectrum of handbook rules still has a lot of gray areas, nearly 14 months after Boeing came down.
Deciding whether a rule is legal under Boeing involves answering a series of questions, the first of which is why the employer wants to have the rule in the first place. If the answer is restricting workers’ rights under Section 7, “we’re going to stop you,” Abrahms said. Short of that, employers should next weigh whether they have a business justification for the rule. Then they should ask whether the desired rule is the best option for fulfilling that purpose.
“From that point, you’re saying, ‘is there going to be an impact, will this in some way … interfere with workers’ rights?’“ Abrahms said. “If so, now we’re going to do that balance” the board described in Boeing.
Abrahms offered as an example a rule making workers sign in when they go to the office while off duty. A worker trying to organize his colleagues while off the clock may shy away if he thinks the company is keeping tabs on him, giving the rule a clear Section 7 impact, Abrahms said. If the employer’s aim is to ward off organizing, the rule is a no-go. But if the goal is to track who’s around in case of emergency, it’s likely OK, Abrahms said.