Pautsch, Spognardi & Baiocchi Legal Group LLP
Monday Morning Minute
In This Issue
                  June 11, 2018


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As was expected, last week General Counsel Peter Robb issued a GC memorandum providing guidance on the legality of work rules in light of the NLRB's decision in The Boeing Company.  The Boeing decision overturned the Obama labor board's decision in Lutheran Heritage Village which prohibited facially neutral work rules which "could" be interpreted as interfering with Section 7 rights, as opposed to "would" be interpreted as interfering with Section 7 rights.  This new standard focusses on balancing the legitimate business justifications of the employer with the negative impact on the employee's exercise of Section 7 rights. 
The Boeing standard creates three categories of work rules.  Category 1 includes rules that are generally lawful because they cannot reasonably be interpreted to interfere with Section 7 rights, or because any potential adverse impact is outweighed by legitimate business reasons.  These rules include a) civility rules; b) no-photography/ no-recording rules; c) insubordination/on-the-job conduct rules; d) disruptive behavior rules; e) confidentiality rules regarding company/customer information; f) anti-defamation/misrepresentation rules; g) rules prohibiting the use of company logos/trademarks; h) rules requiring authorization to speak for the company; and i) rules prohibiting disloyalty, nepotism, and conflicts of interest.   Charges alleging that such rules are facially unlawful should be dismissed, absent withdrawal.
Category 2 rules are not clearly lawful or unlawful, and require case-by-case scrutiny.  Legality of the rule will depend on the factual context.  Examples of such rules include broad conflict of interest rules focused on "employer" or "employee" information, and that do  not target fraud or self-enrichment, or customer or proprietary information; rules that prohibit disparagement or criticism of the employer, as opposed to rules requiring civility or prohibiting disparagement of employees; rules regulating use of the employer's name, as opposed to trademarks; rules prohibiting speaking to third parties or the media, as opposed to speaking on behalf of the employer; rules banning off-duty as opposed to on-duty conduct; and rules prohibiting false or inaccurate statements, as opposed to defamatory statements.  Category 3 rules are generally unlawful.  These rules require confidentiality or prohibit discussion of employee wages, terms, and conditions of employment; prohibiting joining outside or third-party organizations, or prohibit voting on matters related to the employer. 
Call any PSB attorney if you have questions about this guidance and how it affects your current work rules, and any revisions you are contemplating in your annual review of your employee handbook.   
The federal Family and Medical Leave Act of 1993 has proven to be one of the most far-reaching laws ever passed into law. It fundamentally re-defined the balance employers must strike between their own work attendance requirements and their employees' need for leave for childbirth and adoption purposes as well as leave to attend to their own serious health condition and that of certain family members. Our clients pose questions to us  about this law nearly every day, and undoubtedly most of you are required to apply every day to one employee or another. We developed a quiz on the FMLA where you can test your knowledge about the application of this important law:

1. If a state has its own family and medical leave act, it is only necessary that an employer apply the provisions of that state law to all employees working throughout the state, as the federal law is preempted.
2. If an employee has used all of the FMLA leave she is entitled to in a given period of time, she can be terminated if the employer has a consistent policy of terminating employees after they take 12 weeks of leave.
3. If an employee is not yet eligible for FMLA because they have not worked enough hours, they can be denied leave under ADA as well.
4. If two employees who are working for the same employer either have a baby through childbirth or adopt a child, they can be required to split the 12 weeks of Federal FMLA afforded for such an event. 
5. While an employee is on FMLA leave an employer must cover the cost of health insurance for the employee if they cannot afford it because FMLA leave is otherwise unpaid.
6. Dermatitis is considered a "serious health condition" under the federal FMLA. 
7. An employee who falsifies his required certification form for FMLA cannot be terminated because this would still be considered retaliation for the exercise of FMLA rights.
8. An employer is prohibited from retroactively marking leave as FMLA.
9. It is improper to count time off on workers compensation leave as FMLA leave.
10. It is entirely proper to assess points under a No Fault Attendance Policy for days that an employee is absent, if the employees are put on notice that this will occur.
Next week, we will provide  the answers and the critical points they address!
Small projects?  Big projects? Transitional needs while you hire your next your Human Resources person?  Or perhaps you are a smaller company that needs only a part time dedicated person to assist you in HR!  
Contact PSB Consulting to see how we can help.   We work on a project basis or as an extension of your team.
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PAUTSCH, SPOGNARDI & BAIOCCHI LEGAL GROUP is a law firm dedicated to finding common sense, affordable solutions for businesses to labor, employment, human resource and general business needs. With over 75 combined years of experience among its 3 founding partners in these areas, we can assist businesses in developing custom solutions to today's tough issues.  And as litigators, who combined have over thousands of trials  "under their belts" before state and federal courts as well as administrative agencies (such as the NLRB) you will find no better advocate and partner. 


For more information on the firm, please go to our website at or Lisa at