Courts

The NLRB's New Employee Handbook Ruling Throws The Gauntlet At The Supreme Court

Are we seeing the setup to overturn the right to record?

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Many hardbound books background, selective focusThe Supreme Court’s overruling of affirmative action and Biden’s student loan forgiveness were sandbag cases that got a lot of media coverage, but they weren’t the only important ones. There were a couple sleeper cases that will have yet unknown consequences for fundamental aspects of American life. What will public health and environmentalism look like after Sackett? How will artists take inspiration after Warhol? I think that one of the larger sleeper opinions comes from Glacier. In it, the Supreme Court bypassed a federal law that gives the National Labor Relations Board first crack at work conflicts so that a company could sue striking employees in court. In dissent, Justice Jackson wrote that the decision was a strong blow to workers’ right to organize, specifically the right to strike. The NLRB just ruled on an issue that is likely to lead to litigation over laws whose meaning and limits have already been murked by the Supreme Court. From Law360:

The National Labor Relations Board issued a split ruling Wednesday ramping up its scrutiny of workplace rules, such as policies on recording and confidentiality, reversing a Trump-era decision that made it easier for employers to defend policies against claims they stifle labor rights.

A majority comprising the board’s three Democrats said employer handbook policies violate the National Labor Relations Act if they have a “reasonable tendency” to dissuade workers from engaging in organizing activity, such as making workplace recordings and discussing concerns with colleagues. The decision restores and modifies a 2004 standard, ditching a Trump-era test that balanced employers’ reasons for maintaining rules against their effects on workers’ rights.

While it is still early on, it isn’t hard to imagine how this could end up in court. Let’s say a workplace has a strict rule that no electronics are allowed in the working area. After repeated complaints, a union member uses their phone to document that a machine has been out of order and poses a danger to the workers. The employer ignores the complaint and  fires the employee for violating the no electronics policy. Would a dispute like this go to the NLRB or to a courtroom? Obviously the NLRB, but it was obvious that the dispute would go to the NLRB before the Glacier decision. This decision on handbooks may be a building block of cases that ultimately restrict the NLRB’s ability to factor in worker interests against their employers.

NLRB Boosts Scrutiny Of Employer Handbook Rules [Law360]

Earlier: The Court’s Decision To Fill In The Facts On Employer’s Behalf Will Further Weaken Unions And Strikes

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at [email protected] and by tweet at @WritesForRent.

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