Shaken, Not Stirred

By: Dr. Gary Anderberg

September 21, 2023 — Just when you've figured out all the answers, they change the questions. Our example for this issue is a recent decision by the National Labor Relations Board (NLRB). But first — our Journal does not offer legal advice. Ever. This very recent NLRB decision merits your review, probably together with your legal and HR colleagues, because it potentially requires rethinking some common existing safety requirements and the wording of your rule handbook. The title of an article in the Society for Human Resource Management's blog says it all: "Companies Should Nail Down Precise Business Reasons for Workplace Policies" (Companies Should Nail Down Precise Business Reasons for Workplace Policies [shrm.org]).

The essential events are simple, but the ramifications may require some thought. In a recent ruling, the NLRB overturned a standard it established five years ago. Workplace rules that comply with that earlier standard may not meet the burden of proof required under the new ruling. We call your attention to this change because it can apply to safety-related workplace rules, the kind of rules we work with every day in risk and safety management. The SHRM article states bluntly: "Employers will need to think carefully about how to defend some of their corporate policies, such as ones about cameras at a worksite, social media use and appropriate workplace conduct, in light of a recent decision by the NLRB."

One labor attorney quoted in the article noted that it will depend on the type of worksite, but "just saying '[the rule is needed for] safety' on its own is not going to be a panacea. There's going to have to be more specificity undergirding that." Even if your safety rules documentation already has that degree of specificity, you may want to review that question with your friends in HR and legal. Sometimes using an old playbook can be more problematic than no playbook at all.

The SHRM article goes on to offer some potentially very useful details about how certain rules apply in real workplace situations, including disclaimers about when exceptions are warranted. This is a complex area, especially if you administer disciplinary actions involving safety rule violations, so a thorough review to follow up on this new NLRB ruling looks like a sound risk management move.

Dealing with constant changes can be a tedious business, but keep in mind the following observation from a well-known young attorney from Massachusetts: "Change is the law of life, and those who look only to the past or present are certain to miss the future" (John Fitzgerald Kennedy).