CPA Practice Advisor

JUL 2017

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28 JULY 2017 ■ www.CPAPracticeAdvisor.com THE LABOR LAW ADVISOR RECENT CASES The NLRB has been weighing in on handbook provisions in a variety of ways. In 2015, the NLRB general counsel issued the "Report of the General Counsel Concerning Employment Rules." The report tar- geted changing issues, new social media and the NLRB's interpreta- tion of protected activities, includ- ing a focus on handbook policies. Along with the T-Mobile ruling, in April 2016 U.S. Administrative Law Judge David I. Goldman struck down several handbook provisions of Quicken Loans Inc., Fathead LLC and four other companies. Gold- man found that many rules in the so-called "Big Book" were so broad that they could reasonably be inter- preted as interfering with NLRA rights. Some of the troublesome rules read: "If it doesn't belong on the front page of The New York Times, don't put it online" and "Something wrong at QL? Don't take it online. Resolve work-related concerns by speaking directly with your team leader or team relations specialist." According to the ruling, "The elephant in the middle of the room, so to speak, is not some idle comment by a supervisor or memo once distributed by a rogue midlevel supervisor. The issues emanate from an employee manual compiled, created and distributed by the respondents. It purports to be an official manual of rules that employees are to follow." Following the judge's decision, the companies sent an email to employees that rescinded several versions of the "Big Book," according to the decision. The NLRB has also begun to look carefully at confidentiality agree- ments in handbooks, finding that some may infringe on Section 7. In a June 2016 ruling, the NRLB found that Schwan's Home Service, Inc.'s handbook provisions violated Sec- tion 7 by banning employees from using "confidential information" that benefitted employees or third parties, or would be detrimental to the company. Confidential information included salaries, commissions, performance or the identity of employees. The NLRB found that employees would reason- ably interpret the agreement to stop them from discussing terms and conditions of employment. WHAT EMPLOYERS NEED TO DO NEXT Under Pres. Trump, the pendulum may swing back to being more business-friendly. However, any shift is likely to come slowly and incrementally. One consideration is the makeup of the board of the NLRB. At full strength, the NLRB has five mem- bers who serve five-year terms, with one member's term expiring every year. The president appoints board members, who are confirmed by the U.S. Senate. However, Obama's choices of NLRB appointments have been controversial, to say the least. In 2014, the U.S. Supreme Court, in a unanimous ruling in Noel Can- ning v. NLRB, found that Obama's January 2012 recess appointments of three NLRB members were unconstitutional. Currently there are only three members on the board—Demo- crats Mark G. Pearce and Lauren McFerran and Republican Philip A. Miscimarra. That means Pres. Trump will have the opportunity to appoint two members. Until the political and regula- tory situation becomes clearer, employers should assume that the NLRB will continue its current enforcement emphasis. There are several steps employers should take: ■ T hor ough ly R e v ie w C ur r ent Policies Companies should take a close look at their current handbook rules, with an eye toward whether they could possibly infringe on Section 7 rights. Provisions may not have anything to do with union activity. In fact, companies may not even be unionized. But even non- union employers must abide by the NLRA. Exper ienced HR staff and knowledgeable legal counsel should be a critical part of the team that reviews the handbook and sug- gests any changes. Legal advice will be particularly important as companies try to develop policies that protect employees from harass- ment, while not violating the NLRA. ■ Be Specific Language that is too vague or broad can get companies in trouble. As T-Mobile found out, even words about creating a "positive" work environment may not pass muster. While employers may only want to create a professional workplace, the federal government may decide rules could translate into bans on protected activity. When it comes to confidential- ity agreements, handbook rules should stress that it's acceptable to discuss wages and other working conditions with fellow employees. If an employee claims to be discuss - ing confidential information as a whistleblower, companies need to proceed particularly carefully. Some government regulations, such as the Sarbanes-Oxley Act requires employees to report illegal activity. HR and legal counsel should become involved immediately if there is a possibility that whistleblower allegations could be raised. With Donald Trump in the White House and the Republicans in control of Congress, the NLRB may take a more business-friendly approach in the future. But in the meantime, employers need to continue to make sure that nothing in their handbooks could possibly be interpreted as violating Section 7 rights and possibly be viewed as anti-union. ■ 2015 20 15 1998 2015 2015 2015 REQUEST A FREE CATALOG Call: 1-800-888-5803 • E-mail: mail@tenenz.com • On-line: www.tenenz.com LOW COST, HIGH QUALITY TAX AND ACCOUNTING PRODUCTS ® If you're Buying from Anyone else… You're Paying Too Much. 9292 9292 MANUFACTURED ON OCR LASER BOND PAPER USING HEAT RESISTANT INKS 20 15 20 15 PA171UA CONTINUED FROM PAGE 20

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