Better Change Your Policies, Part II

In Part II, Husch Blackwell's Labor Law Insiders Tyler Paetkau and Olga Savage continue their discussion with host Tom Godar regarding the shifting standards applied by the National Labor Relations Board to traditional employment policies. In this episode, the Insiders discussed the blueprint for these pro-labor changes. In this concluding podcast, our Insiders discuss specific policies that might be targeted and proactive actions that employers should explore. Attorney Paetkau describes the new Board standards, which essentially bless disparaging comments by unions and employees regarding employers and their agents, and which means that policies written during the Trump administration and its Board’s interpretation are likely overbroad. It also means that policies that would prohibit the use of company logos or photos without prior approval or in a disparaging way must now be abandoned for more expansive interpretations of “protected concerted activity.” Importantly, the Board in its Staricycle case asked for comment on a new tougher standard, one that would prohibit any policy that may have a potential chilling effect on employee activity comments and communications regarding workplace issues. Such a broad interpretation of Section 7 rights is an abrupt change from decisions only announced a year ago by the same (Trump) National Labor Relations Board. Attorney Savage refers to the Activision Blizzard NLRB decision, where the Regional Director targeted a facially neutral social media policy. Our Insiders also predict that the Board will be more interested in audits of policies, and that unions interested in organizing employers will file charges of a violation of Section 7 of the Act based on employer’s over-broad policies, creating leverage for those organizing activities. The remedies for such a Section 7 violation could be injunctive relief, rewriting of policies, the time, expense and energy engaged to defend against the charge; of course, if the employer terminated an employee for supposedly violating such a policy, the employer would be faced with the reinstatement order and back-pay remedies. Attorney Savage reminds the audience that part of this remedy is the “scarlet letter” order that is posted or placed on a video recording of the employer essentially apologizing or remarking about the violations in which it had been engaged. Bottom line: Our Insiders suggest taking a careful look at social media policies, code of conduct policies, and workplace investigation policies that include confidentiality requirements, as well as severance agreements that may include certain restrictions. However, prohibitions on sharing trade secrets, and vulgar, obscene, or intimidating language may also be prohibited, but the specific words used for such policies must be examined very carefully.