By Kelline R. Linton,
Both the NLRB and OSHA recently published guidelines for employer policies that tackle two hot topics in the workplace.
Social Media Policy
Since 2011, the National Labor Relations Board (“NLRB”) has focused on the propriety of employer policies that address employees’ use of social media in the workplace. Last month, the NLRB issued a comprehensive report to explain the Board’s decisions and positions over the last several years. The Board’s stated goal was “to offer guidance on . . . this evolving area of labor law, with hope that it will help employers to review their handbooks and other rules, and conform them, if necessary to ensure that they are lawful.”
The report offers guidance for the following types of workplace rules:
• social media
• conduct toward the employer and management
• conduct toward co-workers
• communications and interaction with outside parties and the media
• use of logos, copyrights or trademarks
• photography and recording in the workplace
• leaving work or premises, or walking off the job
• conflicts of interest
Significantly, the report indicates that an employee handbook rule generally is unlawful if any employee might interpret it as restricting any form of protected concerted activity, even if the prohibited behavior is harmful to the employer, co-workers, third parties, or the public. On a positive note, the NLRB’s guidance also states some exceptions may exist when the Board views the rule as fostering some employer business interest that the Board deems “legitimate” and sufficiently weighty to justify the restriction on protected activity. To read the full report, download Memo GC 15-04, Report of the General Counsel Concerning Employer Rules, at: http://www.nlrb.gov/reports-guidance/general-counsel-memos.
What does this mean? We highly recommend that all employers take note and ensure their employee handbook and policies are in line with the NLRB’s recently expressed guidance. We especially recommend that employers immediately update their social media policies, since the Board is presently targeting these types of policies. Employers found in violation can be ordered to rescind any unlawful rules, rescind and remedy any disciplinary action based on the rules, and even set aside an NLRB election vote against union representation.
Transgender Bathroom Policy
On Monday, the Occupational Safety and Health Administration (“OSHA”) published a guide for employers that provides best practices for restroom access for transgender workers.
OSHA’s sanitation standard requires that all employers provide employees with sanitary and available toilet facilities. The recent publication clarifies that transgender employees should have access to the restroom that corresponds to their gender identity. The complete guide is available at: http://www.dol.gov/asp/policy-development/TransgenderBathroomAccessBestPractices.pdf.
What does this mean? Employers may need to update their policies to conform to this guidance and ensure compliance with OSHA policy.