Yesterday’s Advisor presented tips from a distinguished panel of employment law experts on the “perfect storm” that’s brewing for HR in 2016. Today, more, including the National Labor Relations Board’s (NLRB) aggressive march into HR territory.
Attorney John Husband, with Holland & Hart LLP, moderated the panel at BLR’s Advanced Employment Issues Symposium held recently in Las Vegas. Husband was joined by Attorneys Mario Bordogna of Steptoe & Johnson PLLC; William Bowser of Young Conaway Stargatt & Taylor, LLP; and Kara Shea of Butler Snow LLP.
NLRB’s Interest in Work Policy Rules
The Board has changed the playing rules in four areas, says Bordogna:
1. Employee handbooks. A March 18, 2015, memo from the NLRB General Counsel states that handbook entries that may be “reasonably construed” to interfere with Section 7 rights are impermissible. Bordogna says the takeaway is to be more specific in what you put in your handbooks. The NLRB has put out memoranda with examples. Unfortunately, in many cases, it’s hard to tell the difference between the acceptable and unacceptable examples, but at least the ones the NLRB approved are “semi-blessed.”
For online commentary, Bordogna says, if an employee posted something online and other employees “liked” it or commented on it, it’s probably protected. Also note, the NLRB doesn’t care about the impact the posting has on the company or its reputation with the public.
2. Employees’ use of company’s e-mail systems. The Purple Communications case found that e-mail systems are not employer property. They are like face-to-face dialogue; if the company offers employees the e-mail system, there’s a presumption that employees can use the system for concerted activity during nonwork time, Bordogna says.
3. Confidentiality agreements. Witness statements had previously been considered confidential and not required to be submitted during discovery; the American Baptist Homes case makes it case by case whether witness statements may be confidential.
4. Mandatory arbitration agreements. The DR Horton/Murphy Oil cases suggest that employers may not require employees to waive class action rights as a condition of employment.
What’s Next for the NLRB?
Bordogna suggests some of the things we can look for from the NLRB in 2016:
- Weingarten in the nonunion workplaces (Employees are entitled to be accompanied by a union representative if they reasonably believe that discipline will be administered.)
- Expansion of “successor” liability for purchases of businesses
- Temporary and regular employees in the same bargaining unit
- Graduate students’ right to organize
Recruiting specialists should stay aware of these developments; applicants are going to want to know what the status of unionization is in your organization.
The future of HR is constantly changing, thanks to organizations like the NLRB.
Speaking of the future, what’s your HR game plan? It’s the brave new world of HR! Are you prepared for changes that are unparalleled in scope and impact?
- Employees all over the world, many of whom you’ve never met in person
- Technological advances and big data
- Talent management challenges like Millennials managing Baby Boomers you once thought would have retired years ago
- Big data on everything from hiring strategies to retention predictions
- Sweeping regulatory changes in the areas of health care, immigration, and privacy that have necessitated massive changes in the way you do business
- And the new normal—doing more … with less
It’s a lot to keep track of—and it’s not going to get easier. To help you get your head around big-picture strategies for 2015 and beyond, HR’s Game Plan for the Future provides a detailed rundown of trends, case studies, and best practices in the following areas:
- Recruiting and Hiring
- Social Media and Technology
- Human Resources Information Systems (HRIS)
- Flexibility and Work/Life Balance
- Talent Management
- Employee Engagement and Retention
- Succession Planning
Find out more or order here—HR’s Game Plan for the Future.