New NLRB Guidelines to Interpreting Employee Handbooks

On June 6, 2018, the General Counsel of the National Labor Relations Board published a memo regarding employer handbook policies. On December 14, 2017, the NLRB issued a new guidance based on the cases in The Boeing Company, 365 NLRB No. 154. This memo is important in determining whether language contained in an employee handbook would give rise to an Unfair Labor Practice.

In Boeing, the Board analyzed previous decisions regarding the legality of employee handbook rules. Following the board’s decision Boeing, the General Counsel of the NLRB has created a guide to help understand and apply the new rules which stem from this decision. A new standard evolved from Boeing involving balancing the potential impact of the rule on the rights of employees against the employer’s justification for implementing a rule.
The decision creates three categories “work rules” may fall under:

• generally, rules in the first category are lawful. They include those requiring civility and authorization to speak on behalf of the employer and preclude the disclosure of confidential customer information;

• rules in the second category call for “individualized scrutiny.” Examples include those regulating off-duty conduct, confidentiality and conflicts of interest; and

• rules in the third category constitute those that remain unlawful. Examples of rules which remain unlawful include those against joining outside organizations or that require employees to keep the terms and conditions of their work confidential.

These changes are solely in regards to the rules employers may construct and include in their employee handbooks. It is important to remember that this memo merely represents guidelines. The memo is not binding. Rather, the. Memo only provides insight as to how the General Counsel will determine whether or not to dismiss charges on handbook policies without a hearing.

If you or someone you know needs help interpreting, drafting, or determining the legality of language contained in an employee handbook, contact Gilbert Law Group today.

Contributed by Nicole Mattern

How to Determine Whether a Worker is an On-Call Employee

Far too often, employers find themselves in the position of unknowingly violating the law as it relates to compensating their employees. Similarly, it is critical for employees to understand what their rights under federal and state law and how much they should be earning. Unfortunately, the complicated and often dynamic nature of federal and state law can render understanding labor law exceedingly challenging for both employers and employees. One such complex issue is determining whether a worker should be compensated as an on-call employee.

On-call time is where an employee is not technically working but is still compensated because he or she is considered to be “on-call.” Determining whether an one should be classified as an on-call employee can be challenging insofar as it is a query that is dependent on a number of very specific variables. Indeed, making this issue even more difficult is the fact that there is no bright line rule for determining whether an on-call employee must be paid for on-call time.

Both federal (FLSA) and state (NYCRR) law call for employees to be compensated while they are on-call at their place of employment or at a place required by the employer. What happens however, when an employee is not required to be in a certain place while on-call. The answer in part, is dependent on for whom the employees use of time benefits. In other words, who benefits more from the time the employee spends on-call, the employee or the employer. This is not a straight forward inquiry, however. Moreover, this is not the only inquiry that is necessary to determine whether an employee should be compensated for time spent on-call. This determination turns on several other significant variables.

If you have questions regarding on-call time, or other labor and/or employment law related questions, call Gilbert Law Group today at (631)630-0100, and speak to one of our qualified and knowledgeable attorneys.