Steven Swirsky Quoted in "The National Labor Relations Board Chair's Dissent on a Case Centered on Employee Handbooks Portends the Board's Future Direction, Legal Experts Say"

While he holds that ruling on unfair labor practices became somewhat of a “cottage industry” for the NLRB during the Obama years, Steven Swirsky, a member in the employment, labor and workforce management and health care and life sciences practices at New York-based Epstein Becker Green, believes Miscimarra’s dissent offers hope to employers who have been struggling to draft policies and handbooks that will pass muster with the NLRB.

“It’s been a real challenge for employers because the pendulum has swung very far in one direction,” says Swirsky. “The dissent calls for is a more balanced approach that considers why the employer says they need this policy and then looks to see how it’s applied and how it’s done in practice as opposed to finding these perceived violations based on the existence of the policy without any evidence it ever inhibited anybody from exercising their rights.”

According to Swirsky, Miscimarra’s dissenting opinion bears “real predictive value” when it comes to future actions of the board. Currently, however, Republican Miscimarra is in the minority, as the other two members of the board, Mark Gaston Pearce and Lauren McFerran, are Democrats. When President Trump fills the two existing vacancies, the NLRB will likely adopt a much more employer-focused approach to the interpretation of labor law, according to Carrol.