A POLITICAL QUESTION – IS IT TIME TO REVIEW YOUR PERSONNEL POLICIES AND IF SO, HOW FAR?
Posted on Nov 8, 2019 on Musings from an HR Attorney by
The difference between the Obama and Trump Administrations is historic. Since before the election, we knew a Trump Administration would dramatically rewrite the landscape. Now, three years in, the National Labor Relations Board (NLRB) is reminding us just how dramatic the change has been. But, beware! If the Democrats win in 2020, everything could change again. Your view on this political issue might impact how and if you want to revise your policies.
Let’s turn back to the beginning. By the time President Obama left office, his impact on America was much more than the legislation he signed. Like many Presidents, he used his Executive power to implement change when the Legislature stalled and sometimes when legislation wasn’t even an option. This is never clearer than when you look at the employment community; under Obama it became dramatically more employee favorable. The Trump Administration has reversed all that.
Take a look at how the NLRB is now reviewing the legality of various employment policies. The latest case is LA Specialty Produce Co., 368 NLRB No. 93. The issue there is the legality of an employer’s policy requiring employees to maintain the confidentiality of employer information and a policy addressing who speaks with the media. Under the Obama Administration, the standard to determine enforceability of such policies was whether the policy could hypothetically interfere with employees’ Section 7 rights (the right to support a union or not, and the right to act collectively with other employees or not). This is a very low bar and caused most employers to have to review and rewrite many employment policies. (Under the Obama rule, these policies likely would have been unlawful.) But then came the Trump Administration and the Boeing decision (365 NLRB No. 15 (2017)). Boeing declared a policy was unlawful only if a reasonable employee, who was aware of his/her legal rights, would feel the company policy limited her/his Section 7 rights. While Boeing created a three tier review, the bottom line is most policies will pass muster under the new standard. LA Specialty has confirmed this new low standard. While the trial judge found both policies unlawful, the NLRB reversed finding no reasonable employee would feel unlawfully restricted by these policies.
So where does this leave employers? If you reviewed and revised your policies during the Obama era, your policies are likely overly protective of employee rights at the expense of management. Has this had an impact on you? Regardless, you could now return to your old policies and there will likely be no issues, but do you want to go that far? And even if you want to make a change is now the time, or should you wait for the outcome of the upcoming election?
Both the Obama and Trump Administrations are extreme. If you move all the way to the right, the next Democratic President will probably cause you to move back. Should you pick a spot in the middle, which might withstand the scrutiny of the next few Administrations? Or should you do nothing right now and wait for the results of the upcoming election? It is a tough call with no right or wrong answer! But remember, beyond legal compliance, your employees are in the middle. Will they see your actions as a strategic “maneuver”; will they question your intent? No matter what you decide, keep your eye on the news; it may impact your next decision.