Dec 04, 2015 - 10:30am

Theater of the Absurd


Executive Director, Labor Policy

12/4/15

The Workforce Freedom Initiative (WFI) this week released a new report detailing the National Labor Relations Board’s (NLRB) increasing hostility to commonsense employee handbook policies. The report, Theater of the Absurd: The NLRB Takes on the Employee Handbook , highlights numerous instances in which the NLRB has declared that reasonable—and common— workplace rules violate federal labor law.

The NLRB’s ongoing efforts in this area of enforcement emanate from the Board’s wildly expansive reading of Section 7 of the National Labor Relations Act (NLRA), which says that employees have the right to engage in “concerted activity” for “mutual aid or protection.” Under Board precedent, a workplace rule is unlawful if an employee would “reasonably” think the rule prohibits protected activity. 

However, the NLRB’s current activist majority seems to have adopted a new definition of the word “reasonably,” a definition that few reasonable people would recognize. Over the last several years,  the NLRB has undertaken a campaign to outlaw heretofore uncontroversial rules found in employee handbooks and in employers’ social media policies—rules that employers maintain for a variety of legitimate business reasons. 

Specific examples of handbook policies the NLRB has struck down include those requiring employees to act courteously, rules to protect sensitive confidential and proprietary information, and even at-will employment policies. Moreover, the report points out instances in which the NLRB appears to be at odds with other federal enforcement agencies, such as the Equal Employment Opportunity Commission (EEOC), which in some cases requires employers to maintain policies the NLRB has declared unlawful. 

Finally, the report points out that the NLRB’s efforts to clarify its stance through official guidance have failed to bring much, if any, clarity to businesses trying to follow the law. In fact, the report details one case in which an employer actually worked with an NLRB regional office to draft a compliant handbook, but was nonetheless charged by the Board with violating the NLRA.

Employers operate in environments where they themselves must balance not just the need for discipline in the workplace but also the obligation to follow legal and/or regulatory requirements from multiple enforcement agencies. Theater of the Absurd aims to bring awareness to the NLRB’s heavy-handed enforcement of its inexplicable interpretations of the law in the hopes that the curtain will come down on its campaign against common sense.  

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About the Author

About the Author

Executive Director, Labor Policy

Sean P. Redmond is Executive Director, Labor Policy at the U.S. Chamber of Commerce.