Effective Discipline:  Surviving Labor Board Scrutiny 

     When disciplining employees, employers must communicate to employees the effects of their misconduct, rather than simply cite the workplace rule that was violated, according to a recent ruling from the National Labor Relations Board. Employers who ignore this directive risk having disciplinary action overturned if the rule which the discipline is based upon is successfully challenged by an employee or a union.

      Background:  For many years, unions and employees have challenged employer handbooks, policies, and workplace rules anytime they believe a policy or rule interferes with employee rights under the National Labor Relations Act. In recent years, the NLRB has issued hundreds of decisions striking down employer rules that can be read as restricting employees from such conduct as returning to the employer's property outside of work hours, leaving work without permission, making false statements, speaking to the media, or releasing confidential information about employees. Even where no employee has been disciplined for violating the rule, the Labor Board has not hesitated to find a violation of the NLRA and strike down the rule.

     Where an employee has been disciplined for violating a rule that the NLRB finds to be unlawful, the customary remedy is for the employer to make the employee whole. This may involve taking steps such as removing the discipline from the employee's file, to reinstating a discharged employee and reimbursing the employee for all lost wages and benefits. It also normally includes advising the employee in writing that the unlawful discipline has been removed from the employee's file and will not be used in any way against the employee in the future. Finally, the employer will also be required to post a NLRB notice to all employees for 60 days that it has rescinded the unlawful rule or policy, as well as to advise all employees of each of the previously mentioned actions it has taken to make the affected employee whole.

     The Continental Group Ruling:  What about the situation where an employee truly did something wrong, but the employer erred by citing a rule the NLRB subsequently finds to be unlawful?  Until recently, the result at the Labor Board was often unpredictable. In Continental Group, Inc., 357 NLRB No. 39 (Aug. 11, 2011), the NLRB articulated the process to be followed for dealing with these situations. The Labor Board explained that it will continue to overturn disciplinary action that is based on a rule found to be unlawful where the "employee violated the rule by (1) engaging in protected conduct or (2) engaging in conduct that otherwise implicates the concerns" underlying the employee protections of the NLRA.

     However, the discipline will be upheld if the employer proves that "the employee's conduct actually interfered with the employee's own work or that of other employees or otherwise actually interfered with the employer's operations, and that the interference, rather than the violation of the rule, was the reason for the discipline."

     The Labor Board emphasized that the burden will be on the employer to prove that "the employee's interference with production or operations was the actual reason for the discipline." Notably, in determining whether the employer is able to establish this affirmative defense, the NLRB said that it will look at what was communicated to the employee at the time the disciplinary action was taken. Merely citing the workplace rule will lead to an employer loss. To win, the NLRB explained that an "employer must demonstrate that it cited the employee's interference with production and not simply the violation of the overbroad rule."

     The Takeaway:  Now more than ever, employers need to scrutinize how disciplinary action is documented and communicated, emphasizing the effects of the misconduct at issue, rather than merely citing the rule that was violated.  In light of the Continental Group decision, employers should thoroughly review their workplace rules and disciplinary action processes. We would be pleased to assist your company in this review.

     For more information, call us today at (818) 508-3700, or visit us on the web, at www.brgslaw.com

Sincerely,

Richard S. Rosenberg

Partner

BRG&S, LLP