From The Workplace Report: NLRB Offers New Guidance Regarding Employee Handbooks
NLRB General Counsel Peter Robb recently issued a memorandumoutlining how his office plans to prosecute claims of unlawful workplace rules, and it is something that employers should probably become familiar with. This memorandum comes in light of the NLRB’s Boeing decision (365 NLRB No. 154(Dec. 14, 2017)), which created a new employer-friendly standard as to how the NLRB would prosecute claims of unlawful workplace rules. Take a look at our discussion of the Boeing decision by clicking here. The Boeing decision established three categories for evaluating employer work rules: 1) rules that are generally lawful; 2) rules that merit a case-by-case determination; and 3) rules that are plainly unlawful. The NLRB’s memo identifies the proper category for a number of typical workplace rules. Category 1 (Lawful) Rules: These rules are generally lawful, as they either do not implicate an employee’s rights under federal law or because an employer’s business interests outweigh any relatively insignificant restrictions on those rights. Some of the examples mentioned in the memo include:
- Rules prohibiting uncivil behavior (like the use of disparaging or offensive language)
- No-photography rules and no-recording rules
- Rules against insubordination or other on-the-job conduct that negatively affects the workplace
- Disruptive behavior rules (like creating a disturbance or causing problems with clients or co-workers)
- Rules protecting confidential, proprietary, and customer information or documents
- Rules against defamation or misrepresentation
- Rules against using employer logos or intellectual property
- Rules requiring authorization to speak for the company
- Rules banning disloyalty, nepotism, or self-enrichment
Category 2 (Case-by-Case) Rules: These rules are not clearly lawful or unlawful. Rather, the employer’s and employees’ interests must be weighed on a case-by-case basis to determine whether the rule is justified. Examples of such rules include:
- Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in or voting for a union
- Confidentiality rules regarding employer business or employee information (as opposed to confidentiality rules regarding customer or proprietary information [which are generally lawful], or confidentiality rules directed at employee wages, terms of employment, or working conditions [which are generally unlawful])
- Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of fellow employees)
- Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark)
- Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf)
- Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations)
- Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements)
Category 3 (Unlawful) Rules: These rules are generally unlawful because they restrict the employees’ rights severely enough to outweigh any potential employer justifications for them. The memo provides only two examples of rules that fit this category:
- Confidentiality rules specifically regarding wages, benefits, or working conditions
- Rules against joining outside organizations or voting on matters concerning the employer
Although these guidelines do not apply to government employers, state labor boards often refer to NLRB guidelines and rulings in evaluating government rules. So, it might be worth taking a look at your employee handbook to see if you need to update or modify it.
Original Post Authored by Matt DiCianni, Ancel Glink
School Security Agent Not Entitled to PSEBA or PEDA Benefits
In a recent case, an appellate court denied PSEBA and PEDA benefits to a school security agent/truant officer, finding that the school employee was not a "law enforcement officer" entitled to benefits under either state law. Stimeling v. Peoria Public Sch. Dist. 150
The Peoria Public School District employed security agents as part of the school's "police department." After learning that it had no authority to operate a police department, the District inactivated the police department and stopped providing police training to its security agents. One of its security agents incurred an injury while on duty, and filed for benefits under the Public Safety Employee Benefits Act (PSEBA) and the Public Employee Disability Act (PEDA). The District denied the request, and the employee filed a lawsuit, arguing that he was a "law enforcement officer" under both statutes and was, therefore, entitled to benefits.
Both the trial court and the appellate court ruled against the employee, finding that he was not a police officer or law enforcement officer under either statute. The appellate court noted that the District was not statutorily authorized to establish a police department or to employ law enforcement officers. As a result, the employee was not an eligible employee entitled to benefits under either statute.
Did You Hear the One About the Priest Who Walked into a Bar?
For decades, the Illinois Liquor Control Act contained restrictions against locating a new licensed establishment in proximity to a church or school. 235 ILCS 5/6-11. Despite this restriction, Section 6-11 of the Liquor Control Act also contained dozens of exceptions to this rule which were enacted by the General Assembly and approved by a sitting Governor. That’s right – each time a business which planned to sell beer, wine or liquor wanted to operate near a church or school, it took an act of the legislature to grant permission.
Finally, by broad bipartisan votes, the State of Illinois has granted local liquor control commissioners the ability to relax this restriction. Public Act 100-663, which became law last week, allows a local liquor control commissioner to grant an exemption to the prohibition if a local rule or ordinance authorizes the local liquor control commissioner to grant that exemption.
So, if a community wants to exercise greater local control, it must adopt an ordinance that delegates authority to the Mayor or Village President (local liquor commissioner) to grant exceptions to the proximity rules described in Section 6-11. The law does not describe any limitations on the scope of local control, so the exceptions granted by the local liquor commissioner may be partial or complete and can be subject to conditions.
Post authored by Adam Simon, Ancel Glink
City and Park District Not Liable for Alleged Defective Design of 606 Trail
Guzman was running on the Bloomingdale Trail (also known as the “606 Trail”) when a bicyclist struck her from behind and she was injured. Guzman sued the Chicago Park District, the City of Chicago, the bicyclist that struck her as well as Collins Engineering, the project manager for the development of the 606 Trail. The Park District argued the case should be dismissed Section 3-106 of the Illinois Tort Immunity Act. That statute says that a public entity or employee will not be liable for an injury if the claim is based on a condition of any public property intended or permitted to be used for recreational purposes except where the public entity is guilty of willful and wanton conduct. The circuit court agreed and dismissed the case, and Guzman appealed. Although Guzman admitted that the 606 Trail is public property used for recreational purposes, she argued that the designof the trail was too narrow to provide sufficient space for users to pass one another, is not a “condition” within the meaning of the Tort Immunity Act. Guzman specifically argued that the term “condition” refers to things that are actually on the trail itself, such as snow, but her argument was that the 606 Trail design was defective. On appeal, the appellate court examined a series of cases where the claims were not based on activities conducted on recreational property, but rather based on the recreational property’s design or construction, including claims that a sidewalk was built too high, a midblock crosswalk was negligently misplaced and that a golf box tee was placed in a dangerous location for spectators. In all of these cases, courts have found that immunity applied to bar lawsuits related to the construction of recreational property. Based on these cases, the court that the Tort Immunity Act barred Guzman’s claims of defective design and both the Park District and City of Chicago were immune from liability.
Post Authored by Christy Michaelson, Ancel Glink