In a not-so-surprising move, the National Labor Relations Board (NLRB) has ruled in favor of rejecting its current “balancing test” – used to determine whether an employer’s work rules are so overly broad as to chill employees’ exercise of their rights under Section 7 of the National Labor Relations Act (NLRA) – in favor of a more restrictive “reasonable interpretation” standard.

Section 7 of the National Labor Relations Act (NLRA) has long been interpreted broadly by the NLRB as protecting employees when they are engaged in disputes over wages, hours and working conditions among other similar disputes. Sec. 7 of the Act grants employees the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[i]

The NLRB’s newly announced legal standard – one that builds upon and expands prior precedents – for analyzing employer work rules harkens back to a time when it seemed virtually all employer policies reviewed by the NLRB were found in some way or another to violate Section 7 rights. Going forward (and retroactively) the NLRB will begin analyzing employer policies “from the perspective of an employee who is subject to the employer’s rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity. The overall view of the NLRB being that employees who are economically dependent on their employers are anxious to avoid discharge or discipline, reasonably inclined to construe ambiguous work rules to prohibit protected activities and as a result seek to avoid any risk of violation by forgoing such activities.

The NLRB also views its prior standard as failing to sufficiently require employers to “narrowly tailor” workplace rules to promote “legitimate and substantial business interests while avoiding burdening employee rights.” As such, the revised standard will allow an employer to rebut the presumption that a rule is unlawful by proving it advances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule.

Considering this new standard, employers – union and non-union – should begin a comprehensive review of all current workplace rules through this new lens. Keeping in mind that as far as the NLRB is concerned, “the employer’s intent in maintaining a rule is immaterial” and what matters – from an NLRB perspective – is whether “an employee could reasonably interpret a rule to restrict or prohibit Section 7 activity.”[ii]

[i] 29 U.S.C. § 157.

[ii] This will be so even if the rule could also reasonably be interpreted not to restrict Section 7 rights and even if the employer did not intend for its rule to restrict Section 7 rights.

The California Office of Administrative Law recently approved amendments to the California Fair Chance Act regulations, as proposed by the California Civil Rights Council. Effective October 1, 2023, these changes impact employers with five or more employees and involve inquiries into an applicant’s criminal history prior to a job offer.

One key amendment concerns the process following an initial assessment where an employer believes an applicant’s conviction history might disqualify them. The modification stipulates that the employer must inform the applicant in writing of this preliminary decision. The written notice should encompass the disqualifying conviction, a copy of the relied-upon conviction history report, the applicant’s right to respond before the decision becomes final, and guidance on the type of evidence that can challenge the conviction history or demonstrate rehabilitation. The notice also must indicate the response deadline.

Further amendments address the concept of individualized assessment. This process is now explicitly defined as a “reasoned, evidence-based determination.” The regulations delineate the factors that should be considered when assessing whether an applicant’s conviction history directly and adversely relates to the job’s specific duties.

Additionally, the revised regulations provide clarity on evidence related to rehabilitation or mitigating circumstances. Applicants may provide such evidence voluntarily or through a third party upon request. The amendments prohibit certain employer actions, such as rejecting additional evidence from applicants, mandating specific types of evidence, disqualifying candidates for not providing certain evidence, and soliciting information about domestic violence survivor status or medical conditions.

The modifications also outline the reassessment process for employers deciding whether to revoke a conditional job offer based on conviction history. Factors include the applicant’s behavior during incarceration, post-conviction employment history, community engagement, rehabilitative efforts, and other mitigating factors.

These changes extend the Fair Chance Act’s jurisdiction to encompass labor contractors, union hiring halls, and client employers. These entities must adhere to the same regulations, especially for workers entering a pool or availability list.

Regarding the IRS Work Opportunity Tax Credit, employers can now request applicants to complete IRS form 8850 or its equivalent before extending a conditional offer. This data gathering is acceptable as long as it’s solely for credit application purposes.

An employee handbook serves several important functions:

• Provides a resource for employees looking for information on company policies/procedures and expectations.
• Helps manage employee expectations when it comes to adherence to company policies/procedures.
• Demonstrates employer compliance with various employment laws.
• Provides an opportunity to welcome new employees and share a bit of company history or important cultural insights.

It is the employer’s responsibility to take the steps necessary to ensure the company’s handbook is not only well drafted, but easy to locate and search. It is also incumbent on the employer to make sure its policies and practices do not negatively impact employee rights under the National Labor Relations Act or fail to accurately represent current company practices. This article provides a few best practices when it comes to drafting, maintaining, and distributing employee handbooks; especially those used by multi-state employers.

Creating the Handbook

Creating an employee handbook can seem like a daunting task – especially when it applies to workers in multiple states – but with planning and consideration as to how applicable policies can or should fit together, success is easily achieved. Although there are no overarching federal requirements that mandate private employers provide handbooks to their employees, there are several reasons to do so, including:

• Compliance with state law requirements mandating the distribution of written policies.
• Segmenting and grouping various policies together by state where applicable ensures employees can easily locate and review state specific information (e.g., benefits, wages, equal opportunity).
• Distributing handbooks and requiring signed acknowledgments assists in ensuring each employee – across all states – receives copies of all relevant policies.

When it comes to drafting a compliant handbook, employers should consider the following:

• Which polices should be included. The first step in creating a compliant employee handbook is determining which polices to include. Deciding which state policies must be included, which state or federal policies are recommended for inclusion, and which are generally considered optional is key. Multi-state employers will need to make these decisions based on the specific laws governing each worksite.

Another key issue in deciding which policies to include is determining whether a specific policy can be used for multiple states. For example, creating a list of core policies applicable to all employees regardless of location (e.g., Workplace Safety, Code of Conduct, Equal Employment Opportunity) will assist in developing the main body of the handbook. Creating a separate list of state-specific policies (e.g., meal/rest periods, overtime rules, family/medical leave laws) will assist in developing state specific addendums or lists highlighting relevant policies for various state-specific work locations.

• Including only those policies the employer currently follows or intends to follow. Because creating an employee handbook can seem like an insurmountable task, many employers simply purchase their handbooks off-the-shelf. These ‘model’ handbooks can be useful when it comes to saving time, but they can also create liability if not specifically tailored to the employer’s current practices (e.g., the model handbook sample policy adopted by the company is stricter or more lenient that existing practices or fails to accurately reflect current company policy). Failing to include accurate policies can also cause confusion, lower morale and damage recruiting efforts.

Whether you create a handbook from scratch or adapt an off-the-shelf model handbook it is not only important that it reflect current company policy, but that it also takes into consideration state-specific differences. For example, multiple states may have similar laws, but there may be cultural or regional differences based on geographic location that should always be taken into consideration.

• Using clear and concise language. An employee handbook should utilize a positive and professional tone that supports the organizational culture. Using clear and concise language (i.e., plain language) – as opposed to legalese – will help avoid confusion. Overly rigid, detailed and complex rules can lead to uncertainty and in some cases inadvertent liability. For example, providing an inexhaustible list of all possible reasons for termination could arguably turn an ‘at-will’ relationship into one that can only be terminated for good cause.

It is also important to include enough information so that the policy can be easily understood, but not so much that it turns the handbook into a Human Resources procedures manual. The goal is that employees be able to read and understand the policy and know who to contact should they have additional questions, including procedural next steps. An additional step toward making your handbook understood is to use familiar and easily relatable workplace scenarios when giving examples of specific policy scenarios.

• Speaking With One Voice. If you are creating a handbook with a mixture of new and existing policies, it is important that all policies speak to employees in the same voice. Inconsistently referring to workers in one policy as “employees” and “you” in another or switching between the company’s full name, an abbreviated company name, and the word “company,” are all hallmarks of a handbook cobbled together from various sources or departments. This patchwork approach can give the impression that the company lacks organization or a comprehensive view of enforcement.

It is also important that policies with reporting directives (e.g., Equal Employment Opportunity or Anti-harassment) are consistent throughout and do not contradict one another.

• Thoughtful Organization. If the completed handbook is overly long or confusing it can impact the strength of this important defensive tool. When challenged, an employer needs to be able to support its actions with solid, easily readable and understandable policies. During the creative process, take an objective look at how the document is organized. Ask yourself, is information easy to find or does it take several minutes to locate? Solicit assistance from others in your organization by asking them to find specific policies and requesting feedback on the overall usability of the handbook.

Aways include a table of contents and group policies together in a logical workflow utilizing headings for clarity. With so many employers offering remote or hybrid work options it is advisable to offer an online (or intranet) version of the handbook for easy access and reference. An online (or intranet) version is also essential for multi-state employers. Ditching the paper handbook also makes updating and collecting acknowledgments/verifications much easier.

The handbook version and/or creation/revision date(s) should be included at the bottom of the title page or noted next to the specifically revised or updated policy (e.g., (v2.rev. 8/2/2023); (Rev. 8/2/2023); or Anti-Harassment Policy (rev. 8/2/2023).

A few additional considerations:

• Always include an employee acknowledgment at the end of the handbook. A copy of this acknowledgment should be provided to the employee, and another maintained in the employee personnel file.
• Many states mandate certain policies be translated into every language spoken by a state-specified percentage of non-English speaking workers.
• Conducting training sessions on relevant company policies and spending time in onboarding highlighting the handbook (as well as important policies) and answering questions will help ensure policies are reviewed and understood.

Keeping these best practices in mind when creating or updating your company’s handbook will help in creating a comprehensive and compliant handbook promoting a positive workplace and protecting the company and its employees.