The National Labor Relations Board (NLRB) has been a thorn in HR’s side for some time now — and things might get even more confusing if the Supreme Court gets involved. 

Lynn C. Outwater, senior partner at Jackson Lewis LLP, spoke at the recent Society for Human Resource Management annual conference in Chicago about the crisis consuming the NLRB these days — and where things stand with the board’s current views.

What a mess

There are no two ways around: There’s controversy brewing in the NLRB.

It all comes back to recess appointments that President Obama made to the board in 2012. Congress claims Obama’s appointments were illegal — Congress was still in session. Obama has countered that Congress was only pretending to be in session. It all amounts to a giant headache for everyone involved.

But why does it matter to HR?

The issue: The NLRB has continued to remain active while the issue has been winding its way through the court system. In fact, there have been over 600 board decisions made since Obama made the appointments.

Now, the case may get picked up by the Supreme Court. And depending on how they rule, the Supremes may find that the NLRB has had no authority to be active this whole time — and those 600-plus cases may get wiped clean.

That said, as of now, there’s nothing HR or companies can do except be aware of it — and be sure that if you have any cases before the NLRB anytime soon, that your counsel is aware of the situation.

In the meantime, HR pros across the country should absolutely continue to abide by the NLRB’s “totally surprising” and “unusual decisions,” as Outwater put it.

Luckily, there are ways around some of the board’s more complicated rulings to make sure you’re in compliance. Here are three, courtesy of Outwater:

1. At-will statements

Many HR pros were stunned when the NLRB began going after company handbooks — especially because the language that the NLRB was taking issue with was the same language that employment lawyers had been urging firms to use for years.

The issue: The NLRB claimed that certain at-will statements could be construed by employees to mean that staffers couldn’t join a union without fear of altering their employment status.

So what qualifies as a lawful at-will statement? Use this write-up, courtesy of Outwater:

Nothing in this [Handbook] changes this at-will relationship, guarantees you a benefit, creates a contract of continued employment or employment for a specified term, or any contractual obligation that conflicts with the [Employer’s] policy that the employment relationship with its employees is at-will.

No representative of the [Employer] other than a[n Employer] executive has the authority to enter into any agreement for employment for a specified duration or to make any agreement for employment other than at will. Any such agreement that changes your at-will employment status must be explicit, in writing, and signed by both a[n Employer] executive and you.

The NLRB continues to take on more at-will statement cases every month, according to Outwater, so there’s no excuse for not auditing your handbook now and revising yours to include this lawful language.

2. Confidentiality in investigations

Confidentiality during workplace investigations has become the norm for almost every company. But the NLRB says that the mere suggestion that an employee cannot communicate with fellow staffers could violate the National Labor Relations Act.

That said, it can be legal, under some circumstances, to require confidentiality during an investigation, depending on:

  • the severity of the allegation
  • whether a person needs protection against retaliation
  • whether protection against destruction of evidence is required
  • whether any testimony is in danger of being fabricated
  • whether there is a realistic need to prevent a cover up, and
  • whether to particularize the instruction.

3. Social Media Policies

Every HR pro knows the headaches the NLRB has caused for companies and their HR policies.

Thanks to what feels like millions of decisions on social media cases, the following are just some of the things your social media policy should not include:

  • Telling employees that if they are in doubt about whether to post something, “DO NOT POST” but rather check with company’s attorney or legal department.
  • A policy that suggests that employees not “pick fights” online and to communicate in a “professional tone.”
  • Advising employees that they are “encouraged to resolve concerns about work by speaking with co-workers, supervisors or managers.”
  • Telling employees that they can’t publish online “material non-public information” or “confidential or proprietary” information.
  • Prohibiting employees from making “disparaging or defamatory comments.”

So where should HR go from here? Here are four tips, courtesy of Outwater, to ensure your policy is in line:

  • Review employee handbooks and other workplace policies NOW to insure current policies are lawful in light of recent NLRB actions
  • Tips for a legally policies in light of NLRB’s new policing efforts:
    • Avoid overly broad provisions that could be reasonably construed to prohibit protected conduct
    • Consider adding a specific disclaimer limiting the policy provisions so that they do not hinder employees’
    • Right to engage in protected concerted activity – but not sufficient on its own
  • Review social media and other policies regularly in light of changes in technology and in the law
  • Conduct executive/management training

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