Employers Beware – The NLRB May be Coming for Your Handbook

Employee Handbook And Policies – Team Smart HR

Employee handbooks are common in most businesses, and employers often prepare one (or find a template) and then forget about it. During the Obama administration, handbooks became a hot topic in the employment arena because the National Labor Relations Board (“NLRB”) attacked employee handbooks from every conceivable angle by arguing that a harmless neutral policy infringed on an employee’s right to engage in protected concerted activity. Handbooks became boring again under Trump, but with the increase in unionization across the country, the NLRB has once again set its sights on employee handbooks. The NLRB recently filed a complaint against Starbucks alleging that 19 of its policies violated its employees’ right to exercise their protected rights.

The NLRB complaint was surprising because its allegations challenge NLRB’s own precedent ruling that a facially neutral policy will be reviewed under a “reasonable interpretation” standard. Under that rule, if a policy does not, on its face, interfere with an employee’s rights, it is presumed lawful.

The Starbucks complaint filed by the NLRB appears to be attacking this precedent because several of the policies in the complaint are facially neutral. The NLRB argued that the following policies violated employees’ rights to engage in protected concerted activity:

  1. Prohibition Against Harassment
  2. A Respectful Workplace Is Everyone’s Responsibility
  3. Shirts, Sweaters and Jackets
  4. Pins
  5. Personal Mobile Devices
  6. Personal Telephone Calls and Mail
  7. Social Media
  8. Soliciting/Distributing Notices
  9. Video Recording, Audio Recording and Photography
  10. Acceptable Use of Starbucks Electronic Communications Systems
  11. Confidentiality
  12. Conflicts of Interest
  13. Media Inquiries
  14. Mobile Computing
  15. Requests for Partner Information
  16. How We Communicate
  17. Conflict Resolution
  18. Corrective Action
  19. [Back Cover]

Why is this important?

Employers will need to review their employee handbooks if the NLRB reverses its precedent. With the NLRB and union activity growing recently, businesses may find themselves facing allegations that their employee handbook is infringing its employees’ rights to unionize. This situation only highlights how important it is for business to review their employee handbooks at least once per year. For additional help navigating these issues, feel free to contact Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, at wlawrence@lgattorneys.com, or (312) 368-0100.

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The Great Resignation – Employers Beware

Resignation Letter" Images – Browse 1,242 Stock Photos, Vectors, and Video | Adobe Stock

The job market continues to be volatile, and businesses are willing to take more risks to hire proven talent. That means taking the best people from their competition. Business owners therefore need to start preparing for when (not if) a key employee leaves to join a competitor.

Below are some ideas to help you prepare for a key employee’s potentially sensitive exit to a competitor and ensure your business is protected: begin preparing and setting up a plan of action so you are prepared to handle.

• Review current restrictive covenant and confidentiality agreements. This is particularly important right now because non-compete laws are changing in Illinois and in other states in the US.
• Update confidentiality agreements to require employees to submit information about their digital footprint on their personal devices, including making those devices available for a forensic review upon the employee’s exit.
• Consider implementing phantom equity programs or bonus plans.
• Evaluate your hybrid-work environment and focus on flexibility.
• Audit your IT protocols and ensure your most important data is being monitored and its confidentiality maintained.
• Limit which employees get access to sensitive information – gone are the days that every employee gets access to all your information.

When an employee leaves to join a competitor, employers should immediately take certain preliminary steps to identify possible wrongdoing:

• Preserve the employee’s email and activity logs. This data is often auto deleted unless you place a hold on the information.
• Review emails sent to personal email addresses.
• Review all emails sent with attachments.
• Review activity logs.
• Preserve any devices used by the employee.
• Conduct an internal investigation to determine if there has been any other unusual activity.
• Retain a computer forensic expert.

Once these preliminary steps are completed, consider sending a cease-and-desist letter to the former employee and the new employer to ensure any damage is contained. Depending on the circumstances, filing a lawsuit (including seeking immediate injunctive relief) may offer the best protection for your business.

The attorneys at Levin Ginsburg can help businesses prepare for and react to the departure of key employees so that any impact is mitigated. For additional help navigating these issues, feel free to contact Walker R. Lawrence, a partner in the employment law practice at Levin Ginsburg, at wlawrence@lgattorneys.com, or (312) 368-0100.

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What Does your Insurance Policy Actually Cover?

New York Ends the Year with Onerous New Insurance Coverage Disclosure Rules for Defendants in Product Liability Litigation | Product Liability Advocate

Insurance is a key part of managing risk and protecting against unexpected financial losses. Individuals and businesses alike can benefit from the right coverage, whether it be your personal auto policy, commercial general liability policy, or property damage coverage. But don’t assume that just because you have a policy you are fully covered. Insurance policies are often full of exclusions and fine print. Even with the most reputable insurers, policies are rarely “one size fits all.”

A recent Illinois appellate court decision is a prime example. In Farmers Insurance Exchange v. Cheekati, et al., 2022 IL App (4th) 210023, the insureds were homeowners who, while unable to sell their property, rented it to a tenant. That tenant was injured when a defective staircase at the home collapsed. The insureds made a claim under their homeowner’s policy with Farmers, undoubtedly expecting they would be covered for the injury occurring in their home. They were not—Farmers denied coverage based on two policy exclusions: the first preluded coverage for bodily injury to any insured or any “resident of the residence premises;” the second precluded coverage for bodily injury “in connection with the rental or holding for rental” of the premises. Based on those exclusions, the appellate court affirmed the trial court’s judgment in favor of Farmers, declaring that it had no duty to defend or provide coverage to its insureds.

The lesson here: review your policy documents carefully and make sure you are getting the coverage you think you are paying for. For more information regarding these or similar issues, please contact Mark L. Evans at mevans@lgattorneys.com or (312) 368-0100.

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