New NLRB Handbook Rules Means Many Employer Handbook Provisions Are Illegal

NLRB has issued a new standard for evaluating employer work rules and employer handbooks. It applies to non-union and union workplaces that are covered under the National Labor Relations Act, which means most employers are covered. Under the new standard, the person challenging a rule or handbook provision must prove that the challenged rule has a reasonable tendency to chill employees from exercising their rights to engaged in concerted activity to discuss or change working conditions. If so, then the rule is presumptively unlawful. 

However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.

This is a sea change from the prior standard, and it will make it much easier for employees to challenge rules. The new standard appeared in a case where the following rules were successfully challenged:

• Confidentiality of investigations
• Limiting personal calls and emails to family emergencies
• No personal electronic devices or cell phones to be kept in lockers and used only on breaks
• No behavior that harms the business reputation of the company
• No activity that adversely reflects on the integrity of the company
• No photos
• No recordings

If these sound familiar, it's because similar rules are in many company handbooks. If they're in yours, you may be able to file an NLRB charge against employer if you want to challenge the rule.

The Board explained how to evaluate a "chilling effect":

In determining whether an employer’s rules or policies restrict or chill employee’s rights to engage in protected activity, one must consider if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; (3) or the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village—Livonia, 343 NLRB 646, 646–647 (2004). Where a rule or policy explicitly restricts Section 7 activity or can be reasonably read to restrict such activity, the Board is required to evaluate the employer’s asserted business justification “[t]o strike a proper balance between the employees’ rights and the Respondent’s business justification.” Caesar’s Palace, 336 NLRB 271, 272 (2001). The Board must accommodate the respective rights of the parties “with as little destruction of one as is consistent with the maintenance of the other.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

I know. Blah, blah, blah. What this means is if you would think a rule prohibited you from engaging in discussions or activities with coworkers regarding working conditions, it's probably illegal. If the rule was made because of union activity or because employees were discussing a potential union, it's probably illegal. If the rule has been applied to restrict employees' ability to discuss or take action together regarding working conditions, it's probably illegal. 

Some rules that may well be affected by this ruling, in addition to the ones I mention above, include:

• Not saying negative things about the company
• Restricting social media use and comments about the company
• Limiting or regulating the ability of employees to make safety complaints
• Restricting meetings or discussions with coworkers
• Restricting the circulation of petitions
• Prohibiting or limiting comments to the media or government agencies
• Prohibiting insubordination
• General civility rules

You don't have to be disciplined under these rules in order to challenge them. So if you think a rule is illegal, you can contact the NLRB about it. If you have been fired for violating a rule you think may be illegal, especially if you were fired for discussing working conditions with coworkers, contact an employee-side employment lawyer in your state about your rights.

Stupid HR Stuff: If You Don't Want Employees To See The Handbook, You're Doing It Wrong

I hear this all the time: "I was required to sign a paper saying I received the handbook. As soon as I signed, the HR folks snatched up the handbook and didn't let me keep a copy." Or, "I was required to sign saying I received the handbook, but I never actually saw it."

What the heck was the point of that? The whole point of having a handbook is to let employees know what their responsibilities are, where to report issues, how to put in for vacations and sick time, all the stuff you actually want them to do and not do.

If you don't want your employees to see your employee handbook, you're doing it wrong.

I think you'll have a hard time proving some key employment law defenses if you don't actually let employees have a copy of the handbook.

Plus, once you have an employee sign a document that you know and they know is a lie, you lose all credibility with them. Everything you do from then on is a joke. A sham. They won't believe you anymore.

To employees who are asked to sign a document saying they received something they never got, I suggest signing with a notation like, “I was allowed to look at it once but was prohibited from getting a copy.” Or maybe, "I am required to sign this but I have never actually seen the handbook." Having to make a notation like that is probably a bad start to new employment, but it's better than signing something you know is not true.

Whether or not employees got a copy of their handbook comes up in almost all employment litigation. Employers who make a mockery of their handbooks look pretty stupid in court. Not only is your credibility lost with your employees, but you could lose credibility with a judge or jury too.

9 Things Every Teen Should Know About Workplace Rights

If you're in high school or college, odds are you're looking for a summer job or internship. Maybe you're even working during the school year. Of course, your school gave you detailed preparation on what your legal rights are when you work. Right? Ha. Not a chance. Schools do roughly zip to prepare teens for the real world workplace. You have to figure this stuff out on your own.

Well, I'm here to help. I wrote last week about sexual harassment, but there's more you need to know. If you're new to the workplace or getting ready to apply for an internship, this is the article for you.

If you are the parent, relative, guardian or friend of a teen who is about to enter the workforce, do them a favor and print, tweet, email (do teens email?), text, Instagram or Pinterest this to them. (You can probably forget about Facebooking it to them since they all fled when their parents got on Facebook.)

Read my article 9 Things Every Teen Should Know About Workplace Rights to find out what your high school or college probably didn't teach you about workplace rights.

How To Tell If Your Employer Is Spying On You

You may know that your employer can legally spy on you at work (and outside of work) in several ways. But how do you actually know if your employer is snooping? Here are some signs that your employer may be spying on you:

Read more at Jobs Week on AOL Jobs.

Answers to Questions On Veterans' Rights, Right To Copy of Handbook

This week I'm answering questions posted on VOW to Hire Heroes Act Fixes Stupid Legal Loophole for Military and Stupid HR Stuff: Can Anyone Tell Me the Point In Not Giving Copies of Contracts and Policies?

Targeting Veterans For Drug Testing

What if an employeer gives an disabled veteran more than one urine test a month and then marks the last form as possible suspesion/cause. Does a disabled veteran have any recourse for legal action? this employer also has me under a arbutrary agreement for employment.

David

Hi David. If you're being targeted for more tests than coworkers because you're a disabled veteran, that may well violate your USERRA rights, as well as the ADA. If, however, you are being tested under the company's random drug testing policy the same as any other employee, then I don't know of any law that treats veterans differently than other employees.

Drug testing laws vary by state, and drug tests are extremely unreliable. The National Workplace Institute says this:

Commonly used drug tests yield false positive results at least 10 percent, and possibly as much as 30 percent, of the time.

Unreliability also stems from the tendency of drug screens to confuse similar chemical compounds. For example, codeine and Vicks Formula 44-M have been known to produce positive results for heroin, Advil for marijuana, and Nyquil for amphetamines. Other substances known to cause false positives include Nuprin, Contac, Sudafed, certain herbal teas and poppy seeds.

Although more accurate tests are available, they are expensive and infrequently used. And even the more accurate tests can yield inaccurate results due to laboratory error. In October, 1990, the National Institute on Drug Abuse launched an investigation into the widely used federal drug testing procedure after learning that a government- certified laboratory incorrectly reported workers had tested positive for illegal methamphetamine when in fact they had been using over-the-counter cold or asthma medicines.

Some state laws and union contracts allow random testing  no more than once a month. Otherwise, it must be for good cause shown. Many times, an employee who has a workplace accident must submit to a drug test. Some states prohibit or limit drug testing in the workplace. A recent summary of state drug testing laws is here.

Employer Won't Give Copy of Handbook

What can you do if your former employer refuses to or cannot provide you with a copy of the employee handbook you signed. I ask this because I was fired without a written warning and remember that it was specifically stated in the handbook that a written warning is it be given before termination. 

Jessica

Hi Jessica. This is one of the stupid things that companies do all the time, and I don't get it. Why on earth have a handbook you want employees to comply with, and then not give them a copy? How can they comply if you won't let them see it? Better yet, may employers make employees sign saying they've received the handbook, but won't give them the handbook. If that's your situation, I think it's outright fraud on the part of the employer.

Some states require that employers give you a copy of anything you signed if you request it. If you're in one of those lucky states and you signed a paper from the handbook itself, you may be legally entitled to a copy.

Otherwise, there's no law that I know of requiring employers to give you a copy of their own handbook. However, it will be tough for them to utilize key defenses to some employment laws if they don't. For instance, if you don't report sexual harassment under a known employer policy, it's a defense to a sexual harassment claim. Where the employer won't give you a copy of the handbook, you could argue that the policy was not a known policy.

I think any employer that won't give employees a copy of the employee handbook is idiotic.

As always, talk to an employment lawyer in your state if you think your employer broke the law.

Today is the last day to nominate blogs for the ABA Blawg 100. If you enjoy reading this blog, I'd appreciate your nomination, which you can do in a minute or less here. Thanks for your support.

Top Six Illegal Policies In Your Employee Handbook

Your employee handbook contains lots of policies and procedures you’re supposed to read and follow. But many handbooks contain policies the National Labor Relations Board (NLRB) considers illegal. NLRB is usually thought of as the agency that regulates all things union: elections, collective bargaining agreements, and unfair labor practices, to name a few. But I bet you didn’t know that they also probably regulate your employer unless you work for the government. That’s right: whether or not your workplace is unionized, the National Labor Relations Act (NLRA) applies to just about every private workplace.

Many employee handbooks contain policies that violate Section 7 of the NLRA, which says: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” NLRB has a new web page that describes its enforcement efforts regarding concerted activities of employees.

Here are just some of the policies NLRB considers to be illegal that may well be in your handbook:

At-Will Employment: Your handbook probably says your employment is at-will. But in a recent complaint the NLRB filed against Hyatt Hotels Corporation, the NLRB found that an acknowledgement in the handbook saying that the only way to change at-will employment was by a written statement signed by the employee and a Hyatt officer was so broad that it implied that unionization was futile. The provision is probably similar to your company’s at-will policy:

I understand my employment is "at will." This means I am free to separate my employment at any time, for any reason, and Hyatt has these same rights. Nothing in this handbook is intended to change my at-will employment status. I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt's Executive Vice-President/Chief Operating Officer or Hyatt's President.

In order to retain flexibility in its policies and procedures, I understand Hyatt, in its sole discretion, can change, modify or delete guidelines, rules, policies, practices and benefits in this handbook without prior notice at any time. The sole exception to this is the at-will status of my employment, which can only be changed in a writing signed by me and either Hyatt's Executive Vice President/Chief Operating Officer or Hyatt's President.

Arbitration: Many employers have policies requiring employees to arbitrate disputes with the company. However, if the company policy says you are waiving your right to a class action, or if it otherwise prohibits employees from filing a NLRB complaint, NLRB says it violates the law.

No Discussion of Wages: Employers try to prohibit employees from discussing and comparing their wages. But prohibiting discussion of wages violates the NLRA. Employees must be allowed to discuss working conditions, including wages. That’s a really important right if, for example, you think you’re a victim of discrimination.

Nondisparagement: Does your company say you aren’t allowed to say negative things about the company, whether online or otherwise? Again, this probably violates your right to discuss working conditions.

Confidential Information: Most companies have a policy that you must keep confidential information confidential. But if that prohibition keeps you from sharing personnel information, revenues, expenses or training materials, it may also violate your right to discuss working conditions.

Social Media: If the company social media policy says you aren’t allowed to discuss or disparage the company in social media, that may well violate your right to complain about working conditions with coworkers. There have been a slew of cases where NLRB has recently found illegal firings due to Facebook postings and other social media issues. Policies that prohibit “offensive,” “demeaning,” or “inappropriate” comments are likely overbroad. Some states have passed laws against demanding your social media passwords, and there's federal legislation pending as well that may protect you from this type of intrusion.

So what do you do if you think your employer’s policies violate the law?

Your first step is to contact your regional office of the National Labor Relations Board. If they believe your employer is violating the law, they can talk you through filing a Charge Against Employer.

You have 6 months from the event or conduct to file. That means if your company comes out with a new policy, or if you are required to sign a form acknowledging your receipt of the handbook or agreement to the policies, you have six months from that date. You are entitled to have an attorney represent you before NLRB but you can’t recover your attorney’s fees if you win.

NLRB will investigate, which means they will interview you and you’ll have to sign an affidavit. They’ll also interview your employer and any witnesses. Then they’ll decide whether or not to issue a complaint against your employer. If they do, NLRB acts on your behalf to proceed against your employer. They will also help try to settle the case.

Unfortunately, your only remedies are reinstatement with back pay and back benefits if you were fired, plus an injunction to prohibit your employer from breaking the law in the future. NLRB might also require your employer to put up a poster advising coworkers of their rights.

The National Labor Relations Act is an under-utilized law protecting employee rights. Your employer may not understand that it applies to them. If you’ve been fired for violating one of these illegal policies, you may have a remedy.

Everything You Wanted To Know About Your Employee Handbook (That You Didn't Bother To Read)

In most states, your company handbook isn’t a contract. They don’t have to follow their own procedures. However, some employers are starting to make employees sign them and add things like an agreement to arbitrate all claims against the employer or a waiver of jury trial.

You will want to read your handbook and understand your rights and responsibilities. Sections you’ll want to pay extra careful attention to are:

Discrimination policy: Where do you report discrimination? Who do you report it to if your supervisor is the discriminating person? If you’re a federal employee, your deadlines are extremely short, so be aware. Know your policies before you need them.

Harassment policy: Ignore that they’ll say to report all harassment. But do report harassment based on race, age, sex, national origin, disability, genetic information, religion, color, whistleblowing, making a worker’s comp claim, or taking Family and Medical Leave. Follow the published policy to the letter (except if it says to report verbally, make sure you also report in writing).

Sick leave/personal leave: Understand who you have to call and how far in advance. Don’t give them an excuse to fire you.

Family and Medical Leave: The employer has to publish the process you must follow to take FMLA leave. Make sure you follow all the steps and get them whatever medical certifications you need to provide.

Donna’s tips:

a. Knowing your handbook makes sense. These are the employer’s rules and you have to follow them.

b. Make sure you keep your copy of the handbook. If the employer wants you to sign saying you’ve received it but they won’t let you keep it, sign, then write, “saw briefly, not allowed to keep a copy.”

c. Pay attention to those updates that the employer sends around in memo form.

d. If it’s a contract for one party, it’s a contract for both. Be careful what you sign. If your company wants you to sign away your rights, have a lawyer take a look, or make sure you understand what you’re agreeing to.

e. If the company fails to follow its own policies, that might be evidence of discrimination or retaliation if they follow the policies for other employees.

Arbitration Agreements - Yes Virginia, You May Have Given Up Your Rights

Arbitration agreements and waiver of right to trial pop up all over the place in employment situations. Some of the documents employers like to stick them to get you to sign away your right to sue are applications, handbooks, employment agreements, arbitration agreements, union contracts – just about any place they can think of to get you to sign without thinking.

Even if you have time to think about them, most states will let employers get away with making you sign away rights you thought were guaranteed in the constitution. Although there's a move afoot in Congress to change this, right now assume your arbitration agreement will be enforced.

If an employer presents you with an arbitration agreement or waiver of your right to trial pre-employment or during your employment, that’s the time to negotiate to make it go away. If the employer won’t negotiate, you can accept it or turn down the job. If they present it to you after you’ve accepted the job, most states will let them say, “sign it or be fired.”

I've seen employers argue that a page acknowledging receipt of the handbook (not having read it) is enough to bind the employee to an arbitration clause even though the handbook specifically said it wasn't a contract. Do they get away with this? Maybe.

Courts love arbitration agreements. It lightens their workload. Don’t expect help from the courts anytime soon. The remedy will have to be through Congress or your state legislature.

Here’s what you need to know about arbitration.

Arbitration defined: An arbitration where you submit your employment dispute to a neutral third party instead of the courts. Some arbitration is non-binding, that is, the parties can still go to court if they aren’t satisfied with the decision. But most arbitration is binding on the parties. That means you don’t even get to appeal an arbitrator’s decision under most circumstances.

Arbitrators: An arbitrator who handles employment arbitrations is usually a current or former employment lawyer, HR person, or other individual with experience in employment law matters. Arbitrators go through training on the process before they are approved to be on a panel. Depending on your arbitration agreement, you may have one or three arbitrators on your panel. You will usually have some input into the choice of your arbitrator. You will always be able to seek to remove them if they have a conflict of interest.

Rules: Most arbitration forums have detailed rules you need to follow throughout the process. Try to elect a forum, if you have a choice, that has employment rules (a great example is American Arbitration Association, which has separate rules for employment disputes), not just general commercial rules. Employment rules usually have some built-in due process protocols to protect individuals. Commercial rules are more geared toward businesses, and may assume the businesses are represented and experienced in arbitrations.

Discovery: Usually, arbitration relies on mutual exchange of documents, no depositions, and no full discovery that you’d get in courts. However, in employment situations, many arbitrators will allow limited discovery and depositions. It’s important to understand what will be allowed from the start of your process.

Costs: Who bears the costs is decided in the arbitration agreement or, if the agreement is silent, in the rules of the arbitration forum. If the rules require the employer and employee to split costs equally from the beginning, that’s a huge advantage for the employer. Remember, arbitrators have to be paid for their time. Most employees, especially unemployed ones, can’t afford to pay. The better way is to have the employer bear the costs from the beginning, then if the employee loses have them assessed with all or some of those costs at the end. But if your employer chose the forum and wrote the agreement, can you guess which way they’ll likely choose? If you have a lawyer representing you, they may be able to fight to get a fair apportionment of costs.

Time: The good news is, arbitration is usually quicker than a court case. The bad news is that there may be shortened deadlines for filing. Read your agreement and the rules very carefully.

Donna’s tips:

a. Arbitration has lots to offer as a form of alternate dispute resolution. It can save time and money, and the person making the decision is experienced in employment law. If there are due process protocols in place and a fair cost allocation, arbitration is nothing to fear.

b. Just because a proposed arbitrator handles primarily employer-side law, doesn’t mean they’ll be bad on your case. Most arbitrators take their position as neutrals very seriously. I’m an arbitrator who also happens to be a lawyer representing primarily employees, and I’ve ruled for management in some of my arbitrations. I've seen management-side lawyer/arbitrators rule for employees. Go for experience, a balanced resume, and if you can, look at some prior decisions before you make a decision on which arbitrators to strike from your panel.

c. Sometimes both sides hate the arbitrator choices the forum offers. Both sides can agree on an arbitrator they like outside the agreed forum.

d. Most objections you hear in court won’t apply to arbitration. Arbitrators can hear irrelevant evidence and all sorts of evidence and testimony that would be inadmissible in court. They tend to err on the side of allowing more, rather than less, information.

e. You don’t have to be represented in arbitration any more than you have to be represented in court. Still, if you can find a lawyer who handles employment arbitrations you’re better off than going it alone in most cases.

Stupid HR Stuff: Can Anyone Tell Me the Point In Not Giving Copies of Contracts and Policies?

I’m sure this doesn’t apply to you. You’re one of the smart HR people. You have no dumba-- tendencies at all. But maybe you know someone who does this, so feel free to pass it on.

Noncompete, Confidentiality and Non-Solicitation Agreements

At least once a month, I have to request a copy of a former employee’s noncompete, confidentiality or non-solicitation agreement. Why? Because HR refused to give them a copy when they signed it.

My conversation with the client after they get the nastygram from the company lawyer usually goes like this:

Me: “Do you have a copy of the agreement?”

Client: “No.”

Me: “Why not?”

Client: “They told me it’s their policy not to give copies.”

Me: Pounds head on desk. “Then how are you supposed to know what you’re not allowed to do?”

Client: Shrugs.

Better yet, there’s this conversation:

Me: “Do you remember even signing an agreement?”

Client: “I don’t think I did. They handed me a bunch of papers my first day, but I think I’d know if I signed a noncompete.”

So I ask you, what the heck is the point of withholding the agreement? Better yet, I’m having a conversation right now with a company representative where, even after the nastygram, they’re refusing to give me a copy of the agreement. Apparently, I’m supposed to rely on their good word that: a. my client signed anything and b. they agreed not to work in their profession anywhere in the universe for a year. Hello? Anyone in there? It’s your burden to prove the contract exists, not mine.

If you can’t prove it to me, I assume what you’re saying is BS. Because about 1/3 of the time, employers claim that employees signed agreements that don’t exist just to scare and bully them into not working for a competitor. And don’t even think about forging one. I have a handwriting expert, and I’m not afraid to use him. (Yes, this really happens.)

The point of a noncompete agreement is to tell the employee what they are and aren’t allowed to do. If you don’t give them a copy, they have no idea. So you can’t blame them when they accidentally breach, can you? I’d like to hear you explain to a judge or jury how the employee was on notice of their obligations when you wouldn’t give them a copy. Can anyone say unclean hands?

Employee Handbook

Even better than this idiocy is the company that has the employee sign a paper saying they’ve been given the company handbook. When I ask where it is, the employee tells me they didn’t get a copy. Why? The company considers the handbook confidential. Say what?

The point of the handbook is to inform employees what is expected of them. What’s the point of refusing to give it to them? Are you that financially desperate that you can’t afford the $2.50 to copy it for them? Is it worth risking losing out on the defense you have if they fail to report sexual harassment when there’s a published sexual harassment policy? Do you think having them sign a paper saying they received it will make a difference when the jury hears that you made them sign something that wasn’t true? Why on earth wouldn’t you want employees to understand what conduct is prohibited? Why wouldn’t you want them to understand your absentee, discipline, and dress code policies?

Enlighten Me, Please

Maybe someone out there in HR can enlighten me. Because I see this refusal to make copies as pointless and stupid, maybe even dangerous to the employer and its ability to win a lawsuit down the road.

Some advice if you don’t want someone like me sitting across from a table taking your deposition: make sure your employees get copies of everything they sign, and that they understand what they’ve agreed to. Otherwise, how can they possibly do what you want?

Okay. Rant over. For now.