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Issue link: https://cpapracticeadvisor.epubxp.com/i/528834
26 June/July 2015 • www.CPAPracticeAdvisor.com FEATURE Among Wendy's errors, according to the NLR B: an unlawful handbook dis- closure provision, an overly broad social media policy, illegal provisions regarding conficts of interest, overly broad rules regarding copyright use, too-restrictive r u les on employee conduct, and an unacceptable ban on cellphone use at work, among others. Under an informal, bilateral settlement with the NLR B, Wendy's modifed its handbook. Along with specifc examples from Wendy's, t he N L R B publ ic at ion desc r ibes a number of handbook rules that could get companies into legal trouble. At 30 pa ge s , t he re p or t m ay s e e m ov e r- whelming. But it provides a roadmap for employers on what the NLR B considers law f u l a nd u n law f u l . I f compa n ies haven't reviewed the information yet, they should immediately reach out to their HR department or atorneys, and conduct a handbook review. The Updated Guidance Te NLR B memorandum was issued to clear up confusion on changing issues, new soc ia l med ia pol ic ies, a nd t he N LR B's inter pretation of protected activity. "Although I believe that most employers do not draf their employee handbooks with the object of prohibit- ing or restricting conduct protected by the National Labor Relations Act, the law does not allow even well-intentioned r u les t hat wou ld i n h ibit employees from engaging in activities protected by the Act," Richard F. Grifn, Jr., General Counsel of the NLR B, noted. "More- over, the Ofce of the General Counsel continues to receive meritorious charges alleging unlawful handbook rules. I am publishing this report to ofer guidance on my v iews of this evolv ing area of labor law, with the hope that it will help employers to review their handbooks and other r ules, and conform them, i f n e c e s s a r y, t o e n s u r e t h a t t h e y are lawful." Te report consists of two parts. Te frst looks at general employee hand- book rules the NLR B has found illegal. It then compares the illegal rules to ones that the NLR B considers lawful, a nd ex pla i ns t he d i f ferences. T he second part delves into greater detail about the problems with the handbook from Wendy's. According to the report, many of the handbook rules in both sections violated Sections 7 and 8 of the National Labor Relations Act (NLR). Under Section 7, employees are guaranteed "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities." Section 8(a)(1) of the NLR makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." The report describes the NLR B's 2004 decision in the Lutheran Heritage Village-Livonia case, which found that "the mere maintenance of a work rule may violate Section 8(a)(1) of the Act i f t he r u le has a ch i l l i ng ef fec t on employees' Section 7 activity." T hat case deter mined r u les can violate the act if: • Employees would reasonably interpret the rule's language to prohibit Section 7 activity; • Te rule was created in response to union or other Section 7 activity; or • The rule was actually applied to restrict employees from exercising Section 7 rights. According to the report, many issues with employee handbook rules come under the frst aspect, where employees could reasonably believe that a rule proh ibit s prote c te d ac t i v it y. T he NLR B's views on the following types of policies limit what would normally be considered non-controversial and nor ma l employ ment pol icies. It is i m p or t a nt t o r e me m b e r t h a t t he NLR B's views of these policies have not been tested in litigation. Tat being said, the report explored several employment rules that the NLR B believes to fre- quently violate the NLR, including: • CONFIDENTIALITY Under the NLR, employees have the right to discuss topics such as wages, hours, and other terms and conditions of employment with their fellow employees and non-employees, such as union representatives. Tat means employers can get in trouble for instituting confdentially policies that specifically prohibit workers from talking about terms and conditions of employment, or, in the NLRB's view, for having policies that would make workers reasonably conclude that they are prohibited from talking about the topics. Labor Law Ruling Means It's Time To Revisit Employee Handbooks By Richard D. Alaniz, J.D. W hen Wendy 's International, LLC created its employee h a n d b o o k , t h e c o m p a n y probably never imagined it wo u l d b e c o m e t h e p o s te r child for what not to do. Yet the Office of the General Counsel (OGC) of the National Labor Relations Board (NLRB), in its recently released "Repor t of the General Counsel Concerning Employment Rules," has held up Wendy's eforts as an example of illegal, overbroad rules and regu- lations in violation of federal labor laws.