The Never-Ending Struggle of Maintaining an Updated Handbook

Due to the ever-evolving status of employment law, maintaining an employee handbook that both complies with the law and best protects the employer’s interests is a never-ending task. This difficulty is exacerbated in a year like 2020—an election year. Because the National Labor Relations Board changes with the presidential administration, no NLRB decision is immortal. This has been evidenced by the many Obama-era decisions the Trump-appointed NLRB has swiftly reversed. Such back and forth changes are a headache for those responsible for maintaining employee handbooks. Here’s a look at some of the many instances the Trump NLRB has reversed an important Obama-era decision:

Employees’ Use of Company Email

Last year, the NLRB reversed an Obama-era decision from 2014 that prohibited employers from restricting an employee’s ability to use his or her company email for activities protected by the NLRA. However, the decision is nuanced by the requirement that employers may not specifically restrict union-activity—it simply permits employers to prohibit employees from using their company email for any non-business purpose.

Confidentiality in Employee Investigations

In 2015, an Obama-era NLRB ruled that employers must decide on a case-by-case basis as to whether requiring an employee to maintain confidentiality when investigating workplace misconduct will violate the employee’s statutory right to discuss terms and conditions of his or her employment. This put employers in a bind, as the EEOC issued contradicting guidance encouraging blanket confidentiality for workplace investigations. Once again, the decision was reversed in December of 2019 by a Trump-era NLRB that decided employers may require confidentiality in workplace investigations into employee misconduct. Nonetheless, it cautioned employers to limit the scope of their confidentiality polices so as to not unnecessarily restrict employees’ rights under the NLRA.

Automatic Deduction for Union Dues After Expiration of CBA

Last month, the NLRB reversed a ruling from 2015 that required automatic union dues deductions to remain in effect even after a collective bargaining agreement expired. Now, employers may use a dues checkoff provision as bargaining chip when negotiating CBAs with unions.

The NLRB will likely issue similar decisions throughout 2020. Employers should not get too comfortable, though, as the chance for sweeping change following the 2020 presidential election looms. Regardless, it is important for employers to stay informed about the current state of employment law and update their employee handbooks accordingly. Luckily, the myHRgenius attorneys at Thompson Coe are ready to assist in any and all handbook needs you may have. Please feel free to get in touch if you’d like to have your handbook reviewed or updated in light of the ever-changing status of employment law.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.