Steven M. Swirsky, a Member of the Firm in the Labor and Employment and Health Care and Life Sciences practices, in the firm’s New York office, was quoted in Law360, in “NLRB Workplace Rule Report Helpful, But No Magic Bullet.” (Read the full version — subscription required.)
Following is an excerpt:
“I think that it is a positive development in the sense that it is a summary of the general counsel’s point of view on a range of subjects,” said Epstein Becker & Green PC member Steven Swirsky. “On the other hand, I think it muddies the water.”
While evaluating the lawfulness of many rules will call for a balancing of the competing rights and interests of the employer and employees—like a company’s interest in having a harassment-free workplace versus workers’ rights to debate and even make “intemperate comments” about Section 7-protected subjects — exactly where the board will draw the line is a question mark, Swirsky said.
What a policy or handbook rule’s language says on paper may be important, but so is what the employer does based on that rule and how it works in practice, Swirsky added.
“What it gives an employer is some guidance on how to write a policy that may not be found to be per se unlawful,” he said, “but the key is going to be what happens—not how it was interpreted, how was it applied.”