Better Change Your Policies, Including Social Media, Part I

Labor Law Insider host Tom Godar welcomes two new Labor Law Insiders as they discuss the shifting standards applied by the National Labor Relations Board (NLRB) to traditional employment policies found in almost every employee handbook, including social media policies. Tom is joined by two new California-based Husch Blackwell attorneys, Tyler Paetkau and Olga Savage. These experienced labor counsel review employer policies that are under greater NLRB scrutiny, which is currently dominated by Biden Administration appointees. Tyler and Olga present a compelling argument that the world of labor law will change at a far greater pace than what might be expected by a mere change of administration from Republican to Democrat. This sea change has been almost exclusively through administrative action rather than through federal legislation, although some state legislation is changing the picture in various jurisdictions, such as California. In August of 2021 General Counsel Abruzzo set forth a blueprint for these pro-labor changes, which called for changes related to confidentiality policies, union access, and many more employer handbook rules. That blueprint is now being followed in still more GC memorandums, as well as ALJ decisions, which show a sharp turn from the policies that the Trump NLRB had initiated. See the contrast in the two NLRB cases in less than one year, one decided by the Trump-majority NLRB, and the other by the NLRB with the new Biden appointments. One of the more frustrating results for employers is the lack of predictability as to how facially neutral policies might be reviewed and found in violation of the National Labor Relations Act. This makes it difficult for employers to know what to do when they see highly derogatory comments on Facebook or in social media regarding their company when it seemed unlikely these were within the context of what traditionally had been identified as protected concerted activity but is now being seen in exactly that light. Essentially, the Board is—one policy at a time—undoing the more employer-friendly standards that had been in play under the Trump and Obama administrations. As the podcast closes, Olga Savage gives a brief but compelling description of how the standard of reviewing policies has changed. If an employer adopts a neutral policy, not targeting traditional organizing activity or activity related to concerted discussions among employees about wages, hours, working conditions, the review of that policy and its application revolves around the potential to chilling impact on employee expression. Such a policy that could be interpreted as having that impact, regardless of employer intent or the express disclaimer regarding protected concerted activity, i.e., Section 7 rights of employees, will itself be seen as a violation and give rise to the possibility of NLRB violations and remedies. Our companion Labor Law Insider podcast, which will follow in a very short time, goes into greater detail and specific application of these changes. Tyler and Olga discuss how these NLRB changes will affect employers reviewing handbook policies that relate to such standard areas as confidentiality, discussion of individual wages, rules for employer investigations, or use of the internet to criticize the employer or its agents. Enjoy this podcast and stay tuned for its follow up podcast in about two weeks.