New NLRB Employer Handbook and Policy Standards - Presentation

On August 2, 2023, the National Labor Relations Board adopted strict new standards for gauging the validity of an employer's written policies.

Under the new standards, employer polices (such as handbook language) are presumptively unlawful if any employee planning to engage in protected activity under the National Labor Relations Act could reasonably interpret the policy to prohibit, or retaliate against, such conduct.

An employer may justify presumptively unlawful policies by showing a legitimate business justification, but the employer must also show that there are no other reasonable alternatives.

The new standard returns to policy first adopted during the Obama administration and rejected by a subsequent Republican-majority Board. Only time will tell whether further reversals may occur depending on the outcome of future elections.

The August 2 decision in Stericycle, Inc. can be downloaded here.

We discuss the new standards, policies likely to be affected, different NLRB General Counsel's guidance, and strategies for compliance in a presentation to PASCO (the Professional Association of Sonoma County) during its 2023 Annual HR Conference in Santa Rosa, California. A .pdf copy of the PowerPoint presentation and embedded links can be viewed here.

Job Posting Wage Disclosure, Annual Reporting Added to Equal Pay Act

As noted last year in a prior post, California law requires employers to pay the same wage to employees performing substantially similar work whenever they possess relevant EEO distinctions such as sex, gender, and race. Employers should expect the law to cause a new wave of employment litigation over the coming years, requiring careful justification of differences with legitimate factors, such as tenure.

A recent SuperLawyers.com article (quoting firm attorney, Richard Rybicki) highlights this emerging trend and the state's new requirements that (1) employers with 15 or more employees disclose pay scale information on all job postings, and (2) employers with 100 or more employees report race, ethnicity, and gender information along with mean and medium pay rates in ten different job categories. Pay data reporting procedure can be reviewed on the California Civil Rights Department website.

The wage posting requirement, part of California's Equal Pay Act, will apply to many more small and medium-sized employers. And unlike large-employer annual reporting, posting requirements are enforced by the ever-aggressive California Division of Labor Standards Enforcement ("Labor Commissioner"). Guidance on posting requirements and other important parts of the law can be viewed on the Labor Commissioner's website.

Employers should continue to monitor wage differences between employees performing substantially similar work, both at hire and as part of regular compliance audits. This is yet another area where an ounce of prevention is worth many pounds of cure!

Court Says Employers Must Reimburse Costs of Working from Home During the Pandemic

In an opinion with vast implications for employers whose employees worked from home during the pandemic, a California court has held that - despite government orders requiring business to operate remotely (and to "exclude" many employees during the pandemic) - employers are liable for virtually all incidental expenses associated with working at home.

In the case, a worker operated remotely during the COVID-19 pandemic due to California Governor Gavin Newsom's executive order requiring residents to stay at home except as needed to maintain critical industry sectors. The worker remained working at home due to the order, later suing for penalties under California’s Private Attorneys General Act ("PAGA") for violation of Labor Code section 2802(a), requiring reimbursement of "all necessary expenditures" that were "incurred by the employee in direct consequence of the discharge of his or her duties.” These included expenses such as internet access, telephone service, a telephone headset, and a computer and accessories.

The employer argued that it was not responsible for (or the "proximate" legal cause of) such expenses as they were caused by the state government's stay-at-home order. The court rejected this argument, holding: "the obligation does not turn on whether the employer’s order was the proximate cause of the expenses; it turns on whether the expenses were actually due to performance of the employee’s duties."

This case will have two immediate consequences. First, it certainly will lead to myriad new PAGA claims based not only on home-based work during the pandemic but also on all hybrid and telecommute employment. Second, it will open the door into a broader question as to which expenses must be reimbursed (internet, heat, desk space, electricity, insurance, etc.) and what proportion of such expenses must be paid. Plaintiff attorneys are likely to rely on prior state caselaw regarding mobile phone expenses, requiring reimbursement even where phone use created no additional cost for an employee (e.g., when employees have an "unlimited" mobile plan or their phone costs are paid by a family member).

Employers should keep an eye on developments following this case and consider whether certain work-at-home costs ought to be reimbursed retroactively. This may require approaching employees and asking them to estimate the costs associated with working at home. There is no good guidance on this issue yet.

The case, Thai v. International Business Machines Corp., can be viewed here.