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EMPLOYMENT LAW UPDATE

Civility & conduct rules, marijuana, and website access & ADA on the HR radar

By Mike O’Brien

Get ready to take a new look at your employee handbook. The National Labor Relations Board (NLRB) is widely expected to issue a decision soon that will mean increased scrutiny of common types of workplace rules, including civility and conduct rules. In a case pending before the Board, its General Counsel submitted a brief last month urging a return to an Obama-era standard for assessing the lawfulness of employer rules.

A quick primer may be helpful. The NLRB is the federal agency charged with enforcing the National Labor Relations Act (NLRA). Section 7 of the Act gives employees the right to discuss pay and other terms and conditions of employment, and to engage in concerted activity to improve them. A common misunderstanding is a notion that the Act only applies in unionized settings, but that’s not right—regardless of whether a workforce is unionized, it enjoys these protected rights.

Longtime readers of these updates will recall the roller coaster of recent years with respect to workplace civility and conduct rules. During the Obama administration, the NLRB stepped up its scrutiny of such rules, applying the standard that if a worker could reasonably interpret a workplace rule as restricting Section 7 rights, it was unlawful even to maintain the rule, regardless of how it was applied. Employers revised their handbooks, carefully parsing the language of civility and conduct rules to ensure they could not be interpreted as chilling Section 7 rights. In 2017, the Board abandoned that standard for one that was significantly more employer-friendly. In a case called The Boeing Company, the Board held that certain categories of workplace rules, including civility and conduct rules, were always lawful to maintain. Employers breathed a sigh of relief and revised their handbooks again.

In a pending case called Stericycle, General Counsel Jennifer Abruzzo urges the Board, which has a majority of Democrat-appointed members, to return to the previous framework, under which it is unlawful to maintain a rule if an employee could reasonably interpret it to limit Section 7 rights. Commentators widely expect the Board to return to this standard. One possible ray of light for employers here is that Abruzzo is also advocating for the Board to “formulate a model prophylactic statement of rights, which affirmatively and specifically sets out statutory rights and explains that no [workplace] rule should be interpreted as restricting those rights.” The prominent display of this model statement in employer policies would “create a presumption that employees could not reasonably construe those rules to prohibit Section 7 activity.” For employers, this type of model statement would provide useful guidance and clarity that did not exist during the Obama era. Whatever it ultimately decides, the Board’s decision in Stericycle will be important for employers. Stay tuned to these updates for further developments!

House takes another pass at decriminalizing marijuana at the federal level

In 2001, scarcely a third of Americans supported making marijuana fully legal. Twenty years later, that support has more than doubled: now, a record-high 68% of Americans back the idea of legalizing marijuana. With an eye, perhaps, on that swell of public sentiment, the House has passed a bill (called the MORE (Marijuana Opportunity Reinvestment and Expungement) Act) that both decriminalizes marijuana on the federal level and provides a path for some to expunge past marijuana convictions.

Employers have seen bills like this before and wondered what full federal legalization may mean for their workplaces. In fact, the House passed this same bill in 2020, and many states have seen marijuana-related bills appear with increasing regularity at legislative sessions. But in 2020 the House’s bill died in the Senate, which was then in Republican hands. And until this type of marijuana-decriminalization bill builds momentum in Republican circles, it remains an issue that employers should track—but don’t (yet) need to act on.

Department of Justice issues ADA website-accessibility guidance—but offers little concrete advice

Retailers know that accessibility obstacles present litigation risks: narrow store aisles, cramped restrooms, and poorly hung handicapped-parking signs can all trigger an ADA lawsuit. For retailers eager to improve access, the DOJ’s guidance on the ADA Standards for Accessible Design has long served as a thorough reference tool.

Now website design has become a new frontier for ADA accessibility—and for ADA litigation. Barriers to website accessibility, including sloppy color choices, failure to embed text with images or captions with videos, and unsophisticated forms or navigation options, may be less obvious to retailers than brick-and-mortar barriers. In March 2022, in an effort to teach retailers about these obstacles, the DOJ issued Guidance on Web Accessibility and the ADA. That guidance also puts businesses on notice that web accessibility is a DOJ priority.

The DOJ’s guidance should grab attention from state and local governments and from businesses that are open to the public. But the guidance appears to leave key questions unanswered, including the basic question of coverage: Do ADA web-access requirements apply to all websites selling to the public? Or only to websites linked to a brick-and-mortar retail operation? And while the DOJ’s guidance mentions technical standards, including the Web Content Accessibility Guidelines and the Section 508 Standards, a company committed to ADA web-access compliance may not even know where to start. Businesses with an online presence may want to begin with a consultation with experienced counsel, who can discuss coverage, litigation exposure, and an audit to test for technical compliance.


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