While the new presidential administration is continuing to make its mark on national policy during its first year, this change has not been reflected in recent labor decisions.
The last active vestiges of the Obama administration are still handing down decisions from the National Labor Relations Board, with two of the three remaining members reflecting the more employee friendly policy preferences of Donald Trump’s predecessor. However, that situation is expected to change before long, as President Trump has nominated Marvin E. Kaplan and William J. Emmanuel to fill the two openings on the board.
In this blog, I explore how the new makeup of the NLRB under the Trump administration could affect one of the more pertinent workplace related issues in recent years – the lawfulness of workplace policies when it comes to verbal and electronic communications.
Causation Standard Set by Federal Courts, Not Expected to Change
While the NLRB is the federal agency that is statutorily empowered to interpret and enforce the “ground rules” for employer and union conduct at the bargaining table and in the workplace in general, the board’s decisions must comply with the legal standards set through federal court jurisprudence.
Manesh Rath, a partner at Keller and Heckman LLP in Washington, D.C. who has been recognized for his work in labor and employment law, points out that the primary causation standard for cases alleging anti-union motive derive from federal court decisions, including a U.S. Supreme Court decision that is more than 30 years old.
In this case, the Supreme Court affirmed that the appropriate test that should be applied in cases of unlawful termination for engaging in protected union activity is the “Wright Line” test, which puts the burden on the General Counsel of the NLRB to prove that the protected conduct was a substantial or motivating factor for the employee’s discharge.
Also in recent years, federal courts have clarified that when determining if an employee was fired due to an anti-union animus, that liability can’t be automatically imputed to management, and the NLRB General Counsel must prove knowledge on the part of the company official who actually made the decision to terminate the employee.
“Because these decisions are from federal courts,” Rath says, “the Board will have to continue to apply that existing model for establishing causation.”
Board’s Interpretation of Specific Facts Is Another Story
The question then becomes whether the board will continue its recent pattern of interpretation of specific facts. Recently, the Second Circuit upheld a 2015 NLRB decision that ruled an employer’s policy prohibiting employees from electronically recording communications in the workplace was unlawful, stating that the policy was overbroad and could discourage employees from communicating about unions or engaging in concerted activities that are protected under the NLRA.
While the Board’s decision in that case was unanimous, many other cases addressing similar or related fact patterns during the Obama administration were decided by 2-1 votes, usually in favor of the employee(s).
“Now employers must disclaim their own policies, under recent Board decisions, in contemplation of the possibility that they could be unreasonably misunderstood,” Rath says. “The NLRB construes any ambiguous policies against the employer even if there is no evidence the policy restricts employee activity.”
According to Rath, a number of those decisions “were either controversial or problematic when applied in the work setting.” He says that these decisions, at a minimum, stand at the front of the line for the next Board to visit.
For example, Rath believes that the Board during the Obama administration placed unnecessary burdens on employers in cases where the employer tried to impose confidentiality upon its employees while conducting an internal investigation, absent a particularized finding of a special need for such instructions.
In addition, the Board decided to allow employees greater latitude to disparage their employers’ products and services, provided that the employee successfully alleges a nexus to terms or conditions of work.
Moving forward, Rath expects that the new Board’s composition will be more amenable to the various considerations employers must take into account when devising workplace policies regarding the use of electronics and social media.
“Well-intentioned employers are almost constantly revisiting their workplace policies to make sure that they are clear without inhibiting their employees’ rights to protected activity under the National Labor Relations Act,” Rath says. “Those employers can certainly hope that a revised Board composition will recognize the need to balance protected activity with the employer’s need to effectively manage its operations and staff.”
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