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Justified employee policies to enjoy greater weight, says NLRB

We continue now with our series of deeper dives into a wave of recent decisions by the National Labor Relations Board. As we noted in one recent post, the NLRB reversed a number of rules, specifically targeted were policies that employer advocates felt tilted legal scales toward supporting worker unionizing efforts.

In this post, we intend to examine more closely a decision that overruled an earlier board action that put a crimp on employers' ability to establish certain employee policies - even ones for which an employer might have solid justification. Based on early reaction, it seems businesses feel the move will help avert employee disputes and restore balance to organizing processes protected by law.

The hazards of "reasonable"

In questionwere Section 7 rights granted to workers seeking to organize under the National Labor Relations Act. The standard at issue was that employers could not include policies in their employer handbooks that might be "reasonably construed" by workers as infringing on their rights to organize.

At issue was a policy of the Boeing Company against using any device to take pictures on company property. The policy did not prohibit employees from discussing employment conditions or engaging in NLRA-protected activities. The indications from case documents are that Boeing was concerned about company security. However, a judge ruled that the policy violated the act because it could be "reasonably construed" as an organizing infringement.

In reversing the policy on a 3-2 vote, the board reversed the judge's decision, saying that the "reasonably construe" standard failed to give weight to Boeing's legitimate concerns. It also said that going forward, its employer policy and handbook reviews would seek to strike more balance in cases where employer justification can be shown.

What does this mean for employers? While more latitude may be given, the key take away is that there must be 'justification' for handbook and other employer policies. Therefore, employers will want to carefully review rules and ensure they have good reasons for their policies that do not otherwise run afoul of NLRB or other agency rules. Kisner Law Firm's experienced employment law attorneys can assist in crafting specialized policiies and answer questions about these new rulings. 

Importance of local counsel for non-Pittsburgh litigants

The legal profession is notable for having a language all its own. Actually, it's not so much that it has its own language as that it continues to rely on a language (Latin) that is not in widespread use. There's even a little irony in this fact. Latin became the common legal language when the Roman Empire set the boundaries of what was then the known world. Today, the whole globe is the known world and Latin maintains its presence in the legal world.

While business and commerce takes place across myriad state and international borders, legal issues, including those that might be related to employment or transaction disputes, are dealt with at the local level. To be sure that these issues get handled in the most effective manner, it makes sense that you seek the help of someone who knows the local court system. The United States District Court for the Western District of Pennsylvania considers this so important that out of state attorneys hire local counsel who move the Court for their pro hac vice admission, which means, for this occasion.

To meet the pro hac vice admission standard:

  • The attorney must be admitted to practice in the district court of the state in which he or she is admitted and be a member in good standing of the bar.
  • The attorney must attest by affidavit to being in active practice in his or her home state and to reviewing the local rules of the court to which he or she seeks temporary practice privileges.

These are requirements for out of state attorneys with cases in the Western District of Pennsylvania in Allegheny County. Local counsel services may also be needed if you are dealing with an employee discrimination complaint before the Pennsylvania Human Relations Commission or the Pittsburgh Commission on Human Relations. Whether you are called before the Western District of Pennsylvania or a Pennsylvania administrative agency, the Kisner Law Firm has the skill and experience to assist litigants and their out of state counsel in appearances before the local courts and agencies. 

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