First Healthcare Compliance CONNECT October 2022

Whether you are going to have an expansive or
a retracted view of the Board’s role, and there
are grounds to argue for both, it is good for
businesses to know what the expectations of each
of them are. The National Labor Relations Board
swings much more broadly than really any other
federal enforcement agency involved in labor and
employment law. That’s difficult for employers to
cope with. NLRB General Counsel Jennifer Abruzzo
is looking to directly overturn precedent from the
Trump administration, which is really only a couple
of years old.
Conversely, the Trump administration looked to
overturn principles, that in some cases, were
decades old. This is really a problem for both sides
of the aisle, I don’t think anybody is conducting
themselves, necessarily in the way that provides the
most predictability for business. The best we can do
here, on the outside, is to make sure that employers
are educated and know that these risks are out
there. I’m certainly talking about it a lot more to
clients and in seminars than ever before. And I was
in practice under the Obama, the Trump, and now
under the Biden administration. I have never seen
as much effort to enforce against the non-unionized
private sector, as I am seeing now. Biden has held
true to his promise to be the most labor friendly
president that many of us will see in our lifetimes.
Even though the Obama administration expressed
an interest in pursuing these matters, we’re seeing
the enforcement drive from the Biden administration
that was not so present before.
I know from speaking with our health care
leaders, there is a lot on their plates right
now and this is yet another thing to be
worried about. If they could start with one
item, what should it be?
I would take a very careful look at handbooks. That
is an area that almost every business I represent
neglects, because, it’s just there. And you know,
“this other thing is an emergency,” and “I’ve got
to put out that fire.” And to your point, everybody
has a tremendous amount of work on their plates
right now. This is the most difficult environment to
operate in that I’ve ever seen, it is truly amazing
that people can get up and soldier on every morning.
And that’s from the management side. And from
the labor side, everybody’s got a lot on their plates,
too. So, if we could move the handbook to the top
of your non-emergency ”to-do” list, that’s what I
would do. Handbooks should really get a thorough
going over every couple of years anyway. If you
haven’t taken a careful look at your handbook in the
last two years to update it and make sure that it’s
compliant with your current labor and employment
laws, that’s a great thing to do.
More specifically, in reviewing your handbook,
look at policies related to workplace civility, social
media, and the like, and make sure that you’re really
focused on illegal behavior and not just “employees
shouldn’t say things that make us unhappy.” Any
policy that’s designed to keep employees from
saying embarrassing things in public is going to
likely be a problem. We should really be focused
on “do not engage in illegal behavior.” If you are on
Facebook with a picture of you and your favorite
marijuana paraphernalia, that’s something we
can prohibit. We can prohibit harassment and
discrimination and defamation. Defamation is a tort,
it is unlawful. You can prohibit defamatory conduct.
But when we’re talking about general civility and
being nice and be courteous, that’s tough thing to
enforce.
Can you delve a little more into social media
expectations?
Certainly, you can expect employees to be lawful
online. This is a perfectly reasonable expectation.
I have some clients who have a policy that says,
“Please do not post photos of unlawful activity.”
“You should not have open containers of alcohol
in a vehicle.” “You should not post photos of your
marijuana paraphernalia.” “You should not post
racist diatribes on Facebook.” Depending on your
workforce, that may or may not be something you
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