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Last summer I played in a coed softball league, where one of my friends from elementary school (shout-out to Raleigh Park) got blown up by the pitcher at home plate. Being the hypercompetitive person that I am, I explained to the ump the exposure and why he should not be called out, and then caused a complete rewrite of the league鈥檚 rules related to scoring runs.

One critical aspect of the new rule was that baserunners needed to run through 鈥渃ones鈥� to be safe and that touching home plate by the baserunner would be a force-out. The idea was that no more tag-outs at home will prevent an aggro pitcher from de-cleating a runner in the name of an out in 鈥渘oncompetitive鈥� coed softball.

This rule ultimately led to many games where another team鈥檚 baserunner was called 鈥渙ut鈥� because the player did not know or understand the new rule. Something as simple as going between two cones instead of touching home plate was too foreign of a concept to understand given all the years that 鈥渢ouch home plate鈥� was ingrained in all of us.

In many ways the April 8 memorandum issued by the National Labor Relations Board鈥檚 (NLRB) General Counsel is a reminder to employers of new rules and developments that could greatly expand penalties and unfair labor practice charges for noncompliant handbooks that otherwise seem fine (like running to home plate!) but for the new guidance. Outlined below is: 1, a brief history on the ruling that led employers here; 2, what the April 8 memo means to employers; and 3, next steps.

The impact of the Stericycle standard

In the NLRB鈥檚 Stericycle Inc. decision last year, the agency adopted a new legal standard for evaluating whether an employer鈥檚 work rule violates the National Labor Relations Act (NLRA). The new standard assesses whether a workplace rule or policy 鈥渉as a reasonable tendency to interfere with, restrain, or coerce employees who contemplate engaging in protected activity.鈥�

In the aftermath of that decision, common employer policies have been struck down. They include those on confidentiality, moonlighting and dress code as well as prohibitions of distracting the attention of others, 鈥渨asting time鈥� or loitering, unauthorized soliciting or collecting contributions for any purpose whatsoever during working hours, misusing or removing certain items (such as employee lists, blueprints, company records, or confidential information) from the employer鈥檚 premises without proper authorization, and making or publishing malicious statements concerning any employee, the company, or its products.

The meaning of the April 8 memo

The General Counsel鈥檚 new memo targets a broader category of cases that may not specifically name affected employees. The General Counsel instructs regional directors to: 1, identify employees affected by illegal work rules, clear any disciplinary records, and award back pay; 2,聽gather relevant information from employers during settlement negotiations, potentially increasing employer liability and settlement costs; and 3, request legal fees and costs for employees harmed by an unlawful contract term.

This approach could significantly increase potential liability for employers if an unlawful work rule affects their entire workforce, potentially harming their business.

Four next steps for employers

1. Review your work rules for potential Section 7 violations, especially all-too-common rules on confidential information and disobedience.
2. Seek legal counsel for questionable work rules and ensure they鈥檙e narrowly tailored or properly phrased in compliance with the law.
3. Train managers and human resources staff to avoid chilling employees鈥� Section 7 rights.
4. Review all other policies to ensure they are compliant with the NLRA and close the gap on potential liabilities.

Something as simple as playing by the rules and touching home plate cost many teams wins in our 鈥渘oncompetitive鈥� coed softball league last year because they simply did not pay attention to the new rules. In the same way, the four simple steps above can greatly reduce your company鈥檚 exposure to an unwanted unfair labor practice charge or penalties handed down from the NLRB.

Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers鈥� interests in all aspects of workplace law. Contact him at 503-205-8094 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 红桃视频 guarantees the accuracy or completeness of any information published herein.