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20 JULY 2017 ■ www.CPAPracticeAdvisor.com RICHARD D. ALANIZ Senior Partner Alaniz Schraeder Linker Faris Mayes, L.L.P. ralaniz@alaniz-schraeder.com THE LABOR LAW ADVISOR Federal Government Increases Scrutiny of Employee Handbooks Just one example includes how federal regulators in recent years have increasingly scrutinized many parts of employee handbooks and found that they could be illegal under the National Labor Relations Act (NLRA). Consider a recent case involving T-Mobile USA, which had handbook provisions designed to maintain a professional work environment. According to one of the company's rules, "Employees are expected to maintain a positive work environment by communicat- ing in a manner that is conducive to effective working relationships with internal and external cus- tomers, clients, co-workers, and management." In a ruling in April 2016, the NLRB struck down that provision, among others. In T-Mobile USA, Inc. and Communications Workers of America and Communications Workers of America Local 7011, AFL–CIO, the NLRB upheld a rul- ing by Administrative Law Judge (ALJ) Christine E. Dibble that found that rule, and several others, to be illegal. But the NLRB went even further than Dibble did, and ruled that other handbook provisions were too broad. The ruling in T-Mobile has represented part of a trend, where the NLRB has found that many rules could limit union activity—even when employers never intended them to have anything to do with unions or to restrict workers' rights. While that may change, any change could take some time. In the meanwhile, employers need to understand whether their handbook provisions, which are designed to minimize risk, could actually get them in more trouble. SECTION 7 RIGHTS Congress enacted the NLRA in 1935 to "protect the rights of employees and employers, to encourage col- lective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy." Specifically, under Section 7 of the NLRA, concerted activity such as the ability to dis- cuss wages and working conditions is protected. Under Section 7, employees are guaranteed "the right to self- organization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in other concerted activities for the purpose 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 NLRA 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." In the T-Mobile decision, the board found that employees would "reasonably construe the rule to restrict potentially controversial or contentious communications and discussions, including those pro- tected by Section 7 of the [NLRA], out of fear that the [employer] would deem them to be inconsistent with a 'positive work environment.'" UNDER THE ADMINISTRATION of President Donald J. Trump, employers may be able to anticipate many changes in the regulatory and legal environment. In particular, the National Labor Relations Board (NLRB), which had been very pro-union under Barack Obama, may shift its focus. CONTINUED ON PAGE 28