One of my employment law colleagues has now gone so far as to say that an employer has better odds of beating the house in Vegas than in winning a case brought by the National Labor Relations Board. In recent cases, the NLRB has argued that a restaurant's employee handbook should not include a rule against disrespect for guests, as this was overbroad. It has serious issues with rules prohibiting insubordination to managers or disrespect to co-workers! All this makes me wonder, on a daily basis, what the NLRB's own employee handbook contains and whether any of the things it finds so problematic in the private sector should even be at issue.
In one case, an employee manual instructed off-site workers that they were prohibited from disclosing the location and telephone numbers of the customers to third parties. One would think that this is in the best interest of the customer, which should not have to accept telephone calls for the worker. Instead, the NLRB and an administrative law judge concluded that the rule potentially interfered with the ability of a union to meet and communicate with employees. Effectively, the customer's phone lines could be flooded all day long with calls from union representatives but, in this framework, the customer has no rights! The NLRB also sought to void a rule which prohibited disclosure of customer information to outsiders, including other customers and members of the employees' own families. This goes to the heart of confidentiality agreements. However, in the mindset of the general counsel to the NLRB, it could also restrict rights of collective action. The judge didn't accept that reason but counsel has appealed to the full board. What this means is expensive and time consuming litigation for the employer.
How would you interpret a provision prohibiting "boisterous or disruptive activity in the workplace"? The NLRB finds this to be vague and ambiguous which amazes me because the criminal law identifies and bans disorderly conduct. It is, fortunately still permissible to ban profane or abusive language which is insulting, vicious or malicious. Thank goodness for small favors! The NLRB apparently is concerned that a prohibition on boisterous activity might restrict discussions between union representatives and prospective members!
Had enough? Believe me, I have! But the NLRB's cup runneth over. Many employers seek to prohibit the taking of photographs, video or audio recordings in the workplace without the employer's prior authorization. Indeed, in the medical context, permitting this to occur would engender HIPAA violations. The Department of Health and Human Services has taken HIPAA to such a radical extent that obstetricians who post montages of baby pictures are considered to be in violation of the statute! Yet, notwithstanding the desire to protect customer privacy, the purpose of this rule, an administrative law judge agreed with the NLRB's general counsel that the rule would tend to prevent employees from recording statements or events that could later be used in NLRB cases, grievances or lawsuits.
From all of this, you can see that the basic principles of moderation and reasonableness are literally being taken off the table by the NLRB. Every potential workplace interaction is being viewed solely through Section 7 classes. To pass muster with the NLRB, employee handbooks would have to be so specific (without even getting into semantic details) that they would be encyclopedic. This is neither affordable nor feasible. A standard employee defense to violation of employer rules is that he did not read or understand the manual. Employers are now being handed a choice between purportedly illegal and purportedly incomprehensible.
Accountants are not only trusted advisors to their clients and colleagues of mine, they are also employers. The accounting profession has already faced the specter of class action litigation on the wage/hour classification of CPA candidates. Now, unfortunately, I anticipate that labor unions will see them as fertile recruiting grounds and the NLRB is helping this along.