Contact Us
Categories
- FTC
- Emotional Support Animals
- Service Animals
- Employee Agreement
- remote work
- Federal Trade Commission
- LGBTQ
- Minors
- United States Department of Justice ("DOJ")
- work from home
- Arbitration
- Workplace health
- Trade Secrets
- Corporate
- Center for Disease Control
- Americans with Disabilities Act ("ADA")
- FFCRA
- Opioid Epidemic
- Occupational Safety and Health Administration (“OSHA”)
- COVID-19
- Temporary Leave
- Families First Coronavirus Response Act
- H.R.6201
- Health Care Law
- IRS
- Paid Sick Leave
- Treasury
- Coronavirus
- Worker Misclassification
- Labor Law
- Overtime
- Kentucky Unemployment Insurance Commission
- Sexual Harassment
- FMLA Retaliation
- overtime rule
- Employer Wellness Programs
- Genetic Information Nondiscrimination Act ("GINA")
- Kentucky minimum wage
- Minimum wage
- Employee Benefits
- Employment Non-Discrimination Act ("ENDA")
- Human Resource Department
- Independent Contractors
- OSHA
- Paid Time Off ("PTO")
- Sick Employees
- Wage and Hour
- ADA Amendments Act of 2008 (“ADAAA”)
- Employee Handbook
- Employee Misconduct
- Employment Discrimination Laws
- ERISA
- Fair Labor Standards Act (FLSA)
- Kentucky Civil Rights Act (“KCRA”)
- National Labor Relations Act (NLRA)
- National Labor Relations Board (NLRB)
- Overtime Pay
- Pregnancy Discrimination Act
- Social Media
- Social Media Policies
- Title VII of the 1964 Civil Rights Act
- U.S. Department of Labor
- Union
- Young v. UPS
- Adverse Employment Action
- Amazon
- Americans with Disabilities Act
- Bring Your Own Device
- BYOD
- Civil Rights
- Compliance
- copyright
- Department of Health and Human Services
- Department of Labor ("DOL")
- EEOC
- Employment Law
- Family and Medical Leave Act (“FMLA”)
- Intellectual Property
- Portal-to-Portal Act of 1947
- Security Screening
- U.S. Equal Employment Opportunity Commission (“EEOC”)
- U.S. Supreme Court
- Uncategorized
- Volunteer
- Work for Hire
- Federal contractors
- Kentucky Labor Cabinet’s Occupational Safety and Health Program (KOSH)
- Micro-unit
- Security Checks
- Specialty Healthcare & Rehabilitation Center of Mobile
- Cloud
- Creech v. Brown
- EEOC v. Hill Country Farms
- Equal Employment Opportunity Commission v. Kaplan Higher Education Corp.
- Lane v. Franks
- Mine Safety and Health Administration ("MSHA")
- Non-exempt employees
- Northwestern
- Shazor v. Prof’l Transit Mgmt.
- Web Content Accessibility Guidelines
- Whistleblower
- WorkSmart Kentucky
- "Ban-the-box"
- 2013)
- At-will employment
- Berrier v. Bizer
- Bullying
- Chapter 11 Bankruptcy
- Chenzira v. Cincinnati Children’s Hospital Medical Center
- Citizens United v. Federal Election Commission
- Companionship services
- Compensatory time off
- Conestoga Woods Specialties v. Sebelius
- Consumer Credit Protection Act (“CCPA”)
- Crystalline Silica
- Davis-Bacon and Related Acts
- Drug-Free Workplaces
- Earnings
- EEOC v. Fabricut
- EEOC v. The Founders Pavilion
- Ehling v. Monmouth-Ocean Hospital Service Corp.
- Federal Stored Communications Act (“SCA”)
- Giant Food LLC
- Government employees
- Government shutdown
- Home Health Care Workers
- Illness and Injury Reports
- Job applications
- Jury duty
- Kentucky Department of Workers’ Claims
- Kentucky Wage and Hour Act
- KYSHRM 2013
- Mandatory vaccination policies
- Maternity Leave
- McNamara O’Hara Service Contract Act
- Medical Exams
- NFL Bullying Scandal
- Payroll
- Permissible Exposure Level ("PEL")
- Private employers
- Sebelius v. Hobby Lobby Stores
- Senate Bill 157
- SHRM
- Small Business Administration (SBA)
- Violence
- Wage garnishment
- COBRA
- Contraceptive Mandate
- Defamation
- Defense of Marriage Act (“DOMA”)
- Employee Forms
- Employee Hazards
- Employee of the Month Programs
- Employee Training
- Employer Group Health Plans
- Employer Mandate
- Employment Practices Liability Insurance
- Endorsements
- Federal Workplace Agencies
- FICA
- Form I-9
- Freedom of Speech
- Gatto v. United Airlines and allied Aviation Services
- Health-Contingent Wellness Programs
- HIPAA
- Litigation
- Madry v. Gibraltar National Corporation
- Megivern v. Glacier Hills Incorporated
- Motivating Factor
- Obesity
- Online Account Protection
- Online Defamation
- Participatory Wellness Programs
- Patient Protection and Affordable Care Act
- Pennington v. Wagner’s Pharmacy
- Pension Plans
- Play or Pay
- Record Retention
- Reference checks
- Religious Employer
- Sequester
- severance pay
- Social Media Ownership
- Supervisor
- Supplemental Unemployment Compensation Benefits
- Tangible employment actions
- tax refund
- Telecommuting
- Title VII retaliation cases
- Troyer v. T.John.E Productions
- U.S. Citizenship and Immigration Services
- Unfair Labor Practice
- United States v. Quality Stores
- United States v. Windsor
- University of Texas Southwestern Medical Center v. Nassar
- Vance v. Ball State University
- Crisis Management
- Employee Arrests
- Employee photographs
- House Labor and Industry Committee
- Job Description
- Job Requirement
- Kentucky’s Whistleblower Act
- KRS 391.170
- Municipal Liability
- PhoneDog v. Kravitz
- posting requirements
- Public Sector Liability
- Right to Work Bill
- social privacy laws
- Strategic Enforcement Plan (SEP)
- White v. Baptist Memorial Health Care Corp.
- Wilson v. City of Central City
- Workplace Politics
- Class Action Waivers
- Criminal Background Checks
- Employee Performance Reviews
- Employee Personnel Files
- Federal Arbitration Act (FAA)
- Federal Department of Labor
- Hiring and Firing
- Informal Discussion Letter (“EEOC Letter”)
- Kentucky Labor Cabinet
- Labor and Pensions ("HELP")
- Retaliation by Association
- Salary Threshold
- Social Networking Online Protection Act (SNOP)
- Unemployment Benefits
- Workplace Discrimination, Harassment and Retaliation
- Business Insurance
- Communications Decency Act
- Employee Contracts
- Hosanna-Tabor Opinion
- Insurance Coverage
- Internet & Media Law
- Internet Defamation
- National Labor Relations Act
- Non-Compete Agreement
- Uniformed Services Employment and Reemployment Rights Act
- USERRA
Boeing, Boeing, Gone! NLRB GC Recommends Reversal of Employer Handbook Standards
With any new administration in Washington comes changes to the National Labor Relations Board. From the start, Biden’s NLRB has made clear their goal to reverse the employer-friendly handbook standards established by the Boeing decision, and the General Counsel’s March 7th post-hearing brief includes recommendations that take further steps towards that goal.
The Boeing standard, the result of the decision in Boeing Company 365 NLRB No. 154, has been in place since the decision was made in 2017 and allows handbook rules to be evaluated not only on the basis of legality under the National Labor Relations Act (NLRA), but also on the basis of the employer’s justification for the policy. For example, a policy restricting the workplace use of cell phones would be permitted under the Boeing standard in situations in which cell phone use would endanger employees or potentially compromise the employer’s intellectual property or confidential information. This standard has allowed employers to tailor their handbook rules to the specific needs of their workplace.
However, the current NLRB seeks to return to the pre-Boeing standard, Lutheran Heritage 343 NLRB 646 (2004). The Lutheran Heritage standard much more strictly evaluates and prohibits handbook rules based on the framework that if an employee “would reasonably construe” a policy as restrictive of their rights under Section 7 under the NLRA (such as the rights to organize and bargain collectively), or if the policy would “reasonably tend to chill” Section 7’s protected concerted activities, the policy would be unlawful.
The General Counsel’s recent post-hearing brief, issued in the case Stericycle, Inc., recommends that the Board return to the Lutheran Heritage standard, claiming that the Boeing standard is too complicated and unpredictable as well as less protective of employee rights. The brief also recommends strategies to strengthen the Lutheran Heritage standard, including a presumption that employees will likely interpret a rule as being restrictive of their Section 7 rights and that employers should include a statement of those rights in their employee handbooks, as they should not assume that employees are aware of those rights.
However, the brief also recommends that if a rule is both specifically fitted to a particular circumstance and the employer’s interests outweigh Section 7 rights, then a rule may stand as lawful, even if it might otherwise have been deemed restrictive and unlawful. This recommendation would help employers to regain some of the edge lost in a reversal of Boeing.
As the NLRB continues to work towards overturning current case law, employers should begin to consider which policies of theirs may come under fire—and prepare accordingly. To review your handbook and plan for the fickle future of labor law, contact McBrayer today.
Claire M. Vujanovic, member with McBrayer, is located in the firm's Louisville office. Ms. Vujanovic's practice is concentrated in the areas of labor and employment law and includes NLRA compliance, drafting and reviewing employment manuals and policies, drafting severance, non-compete and employment agreements, and counseling clients related to overtime and wage and hour regulations, laws and claims and workplace discrimination. Ms. Vujanovic can be reached at cvujanovic@mcbrayerfirm.com or (502) 327-5400, ext. 2322.
Services may be performed by others. This article does not constitute legal advice.