Time to Review Handbooks in Light of Recent NLRB Ruling

The pendulum is swinging once again at the National Labor Relations Board (“NLRB” or “Board”). In its recent decision in Stericycle, Inc., 372 NLRB No. 113 (2023), the Board largely returned to Obama-era standards for evaluating whether workplace rules infringe on employees’ Section 7 rights under the National Labor Relations Act (“NLRA” or “Act”). Section 7 of the Act gives employees the right to engage in concerted, protected activities. While most employers think of the Board as policing union matters, keep in mind that the NLRB also has jurisdiction over non-union employers and employees.

In Stericycle, the Board majority returned to the standard of a case-by-case review of employer rules and heightened its scrutiny of workplace policies in at least two important ways. First, the new standard focuses on whether a work rule “could” (rather than “would”) be interpreted to chill employees’ Section 7 rights, meaning rules may be deemed illegal even if there are alternative interpretations that are consistent with employee rights. Second, whether a rule implicitly limits protected activities under the new standard will not be considered from the standpoint of a “reasonable” employee. Rather, the Board “will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer.” This represents a drastic change from Trump-era Board law.

What Should Employers Do Now?

If the Board receives a complaint and ultimately finds one or more of an employer’s work rules to be unlawful under Stericycle, the employer will be required to remove, redact, or replace unlawful policy language and post and distribute notices to employees acknowledging the violation and providing information about their rights under the Act. More importantly, terminating employees according to rules that the Board deems overly broad can result in reinstatement and back pay awards.

Even before the Stericycle decision, it was considered a best practice for employers to establish regular, periodic reviews of their handbooks and workplace rules. In light of the Board’s new standard, employers should conduct such a review now, with a particular eye toward policies that restrict employee speech and actions, as those policies are the most likely to be interpreted as interfering with Section 7 rights. For example, employers should review policies regarding:

• Employee use of social media;
• Criticism of the employer and/or company management;
• Promotion of civility in the workplace;
• Confidentiality of investigations and complaints;
• Disclosure of confidential information, such as terms and conditions of employment;
• Contact with the media and government agencies;
• Solicitation and distribution in the workplace;
• Use of cell phones, cameras and recording devices in the workplace;
• Employee disciplinary rules;
• Use of company communication devices;
• Appearance/dress code; and
• Open-door/internal complaint procedures.

Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding employment law issues. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney is available for additional consultation.

Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers' Association
800-662-6238

Who is MEA?

MidAtlantic Employers’ Association delivers comprehensive HR-driven business solutions designed to help companies grow. Whether you need support for a single project or complex issues, you have access to seasoned professionals who are experts in their fields and dedicated to serving you well. Our collaborative, accessible, and responsive nature allows us to help you find solutions aligned with your goals. Whatever your goals are, we can help you develop better people and better outcomes so they can be achieved.

To learn more, contact Matthew Roessler, Director of Member Engagement, viaThis email address is being protected from spambots. You need JavaScript enabled to view it.or 201-738-8121.

Wage + Benefits Survey Now Open

Wage + Benefits Study Now Open

On behalf of its more than 3,500 print manufacturer members, Americas Printing Association Network (APAN) has announced its Wage + Benefits Survey is now open for submissions through August 18, 2022. Survey access may be found by going to portal.printindustries.org. The APAN Wage+Benefits Survey is the most comprehensive annual survey of labor costs and human resource policies of print-related  companies. From top management to the shipping department, the Wage+Benefits Survey annually captures labor costs and human resource practices from 500 firms and 15,000 employees across North America.

The Wage + Benefits 2023 Survey captures wages for most industry  positions in sixteen categories, segmented by region and company size. The survey captures policies for overtime, vacation, PTO, sick-time, health insurance, and includes job descriptions for more than 200  industry positions. The online portal supports participants with multiple locations and makes the previous year’s employment data submissions available automatically upon login, making the process quick and easy.

If you have completed the Wage + Benefits Survey in the past, please use the same email address. Your previous information will be saved and you can just update it. If you have never completed the survey, you will sign up for a new account. Once you do you will receive an email to create a password.

All participants will receive the report for FREE.  Click here to take the survey.

ICE Extends Flexible I-9 Rules for Remote Workers Through July 2023

ICE Extends Flexible I-9 Rules for Remote Workers Through July 2023

The United States Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) agency recently announced an extension through July 31, 2023 of compliance flexibility related to Form I-9 employment eligibility verification requirements. ICE first announced its I-9 flexibility policy in March 2020 for workplaces operating remotely due to the COVID-19 pandemic, and ICE extended the policy numerous times. The policy originally stated that employers would not be required to inspect I-9 documents in the physical presence of employees until the resumption of “normal operations,” and that employers instead would be allowed to review such documents virtually.

With the COVID-19 flexibility policy coming to an end, DHS is now encouraging employers who have been utilizing the flexible inspection procedures to ensure that all required physical inspection of identity and employment eligibility documents is completed by August 30, 2023. This applies to employees hired on or after March 20, 2020 who have received a virtual or remote examination under the temporary flexibility policy.

For fully remote employees, ICE has confirmed that anyone the employer designates may be an “authorized representative” for completing Section 2 of the Form I-9 and the physical document inspection. A representative could include, for example:

• A member of the employee’s household (although this approach presents potential problems);
• A designated agent (like a notary); or
• A third-party agency hired by the employer.

Note that the employer will remain liable for errors or omissions on the Form I-9, regardless of who completes it. Employers who use an “authorized representative” other than a company employee for verification should prepare instructions for their representative and be available to that individual to answer questions during the verification process. Employers also should review the completed I-9 as soon as possible to correct any errors before the employee’s fourth day of employment, thereby reducing any potential employer liability.

In addition, United States Citizenship and Immigration Services has provided guidance on how to annotate a previously completed Form I-9 to note a subsequent physical inspection of identity and employment eligibility documents.

Moreover, the issue of remote verification of I-9 documents likely will be revisited later this year. As a response to the COVID-19 pandemic and its impact on remote work, DHS issued a proposed rule that would allow for alternative procedures for the examination of identity and employment eligibility documents. DHS currently is reviewing public comments and plans to issue a final rule later this year.

Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding human resources compliance issues. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney is available for additional consultation.

For more information on this topic, please join us for our Weekly Town Hall Webinar on July 11 at 11 AM when we will be joined by immigration attorney Chris Thorn of Buchanan.  Chris will be discussing this and other immigration issues.

Congratulations to All the Winners!

NLRB Says Your Severance Agreements May Violate Federal Law

The National Labor Relations Board Says Your Severance Agreements May Violate Federal Law

The swinging pendulum at the National Labor Relations Board (NLRB or the Board) continues, with the current Board overruling cases that were decided during the Trump administration (some of which overruled precedent from the Obama administration). In the recently decided case McLaren Macomb (372 NLRB No. 58), the NLRB set its sights on confidentiality and non-disparagement provisions in severance agreements. All employers – including those without unions – should take note of and are affected by this latest decision.

In McLaren, the NLRB found that the employer violated the National Labor Relations Act (NLRA or the Act) by presenting employees with a severance agreement containing confidentiality and non-disparagement provisions that, according to the Board, restricted employee rights under the Act. Importantly, the Board’s decision in McLaren Macomb applies only to severance agreements presented to nonmanagerial employees. The NLRA defines a “supervisor” (i.e., a manager) by considering factors that include, but are not limited to: whether the employee has authority to hire, fire, discipline, or responsibly direct the work of other employees.

The Board found the non-disparagement provision at issue violated employees’ NLRA Section 7 rights because “[p]ublic statements by employees about the workplace are central to the exercise of employee rights under the Act.” Similarly, the Board found that the confidentiality provision at issue violated employees’ Section 7 rights because it precluded employees from “disclosing even the existence of an unlawful provision contained in the agreement,” which, the Board argued, could persuade employees from filing unfair labor practice charges or assisting the NLRB in an investigation. The Board also determined the confidentiality provision to be unlawful because it prohibited employees from discussing the severance agreement with current or former coworkers, including those who may receive similar agreements, union representatives or other employees seeking to form a union.

WHAT SHOULD EMPLOYERS DO IN THE WAKE OF THE MCLAREN DECISION?

The McLaren decision makes clear that the Board will closely scrutinize whether the language of severance agreements restricts employees’ NLRA rights. Given this decision, employers should consider taking one or more of the following actions to minimize risk when offering severance agreements with confidentiality and non-disparagement provisions to non-supervisory employees:

• Assess the value of including confidentiality and non-disparagement clauses in the agreement at all and consider whether such clauses can be narrowly tailored so as not to violate employee rights under the NLRA.

• If a severance agreement contains confidentiality and non-disparagement clauses that might be interpreted as restricting employee rights, those restrictions should be as narrow as possible and make explicit that the agreement is not intended to preclude employees from asserting their rights under the NLRA.

• If including confidentiality and non-disparagement provisions, be sure to include “severability” language so that, even if a court or the Board ultimately finds these clause to be unlawful, the remainder of agreement will be enforceable.

Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding the use of severance agreements with departing employees. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney is available for additional consultation.

Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers' Association
800-662-6238

Update Your Employee Handbook

‘Tis the season—to update your company's employee handbook 

An outdated handbook can be a liability, particularly for multistate employers with a widely-dispersed work force.

With 2023 around the corner, now is the time for employers to consider updating their employee handbooks. Handbooks, handed out at orientation and often thereafter ignored, are an important compliance tool for employers addressing all manner of employment issues. And handbook policies can be a helpful tool when defending a variety of employment claims, such as wage and hour violations, harassment and discrimination lawsuits, and leave disputes.

An outdated handbook however, can be a liability, particularly for multistate employers with a widely-dispersed work force. These employers in particular must be attuned to the myriad of different employment laws and must be aware of new developments in any states where any employee is located. These complicated compliance requirements may seem tedious or burdensome, especially in an environment where employers are already struggling with recruiting and hiring, but failure to do so can be costly.

Below, we highlight a few particularly key and nuanced issues to assess when deciding whether to update some of the most-referenced sections in any handbook - the paid leave policy, the expense reimbursement policy, and the anti-harassment and discrimination policies.

Paid Leave

The past year saw increasing calls for paid leave laws to be enacted at both the state and local level. And new paid leave laws have come into effect in several states in 2022, like New Mexico's Healthy Workplaces Act. Indeed, at least 11 states and municipalities have enacted paid leave laws and others are likely to follow. Consider these factors when assessing whether your leave paid policies may be in need of an update:

Expense Reimbursement

While federal law only requires that employers reimburse employees for expenses that bring an employee's earnings below the federal minimum wage, state and local laws vary greatly in the treatment of worker expenses and reimbursement. California, Illinois, Iowa, Massachusetts, Montana, New York and the District of Columbia require that employers reimburse employees for various work-related expenses. And further, several of those states consider expense reimbursement wages subject to the same timing requirements as regular payroll.

Lawsuits for failure to properly reimburse employees for expenses are rapidly increasing in these states and for all manner of expenses ranging from typicalwork-related expenses such as telephone and internet fees and the cost of office supplies, to the extra cost of energy to heat or cool a house. Expense reimbursement also raises questions regarding the ultimate ownership of devices and equipment, especially when employment ends. To address these issues, a good expense reimbursement policy clearly provides:

Protected Characteristics

Over the last several years, state and local authorities have expanded definitions of protected characteristics. At least 18 states and many municipalities have added protections for natural and protective hair styles, for example. Moreover, medical or recreational use of marijuana is now legal in 26 states. Several of those states such as Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island provide protections for employees that participate in off-duty recreational use of cannabis products and therefore limit an employer's ability to refuse to hire or take adverse action against those workers.

While catch-all language to include additional protected characteristics, such as "and any other characteristic protected by federal, state, or local law," is a common solution, adding the particular protected characteristic to the policy - and better still to harassment and discrimination training - can serve as a defense against liability.

At a minimum, every handbook should contain an Anti-harassment and Ani-Discrimination Policy that:

Finally, Remember the Basics:

• Use plain language.

• Set clear expectations for attendance, conduct, and discipline.

• Include that the handbook is not a contract of employment and does not modify the at-will nature of employment.

• Include that the policies within the handbook may be revised, modified, or revoked at any time, with or without notice.

• Make sure that the company retains discretion and flexibility when making decisions.

• Ensure that you actually follow the policies!

If policies are outdated or no longer followed, that's a clue that your handbook needs a thorough update.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Two Winners in Americas Print Awards

Two entries from Excellence in Print were winners in the Americas Printing Association Network’s (APAN) inaugural presentation of the 2022 Americas Print Awards, a national competition that recognizes the absolute finest in printing across the United States. The winning pieces will be on display at Americas Print Show 22 www.americasprintshow22.com in Columbus, Ohio, August 17-19, 2022.

Recipients of the inaugural Americas Print Awards are:

• BEST SOFT COVER BOOK AWARD – Printing Specialist Corporation, Annapolis Junction, MD for Period Architecture

• JUDGES CHOICE AWARD – HBP, Hagerstown, MD for 14 Stations at the Crossroads

It's never too early to start collecting entries for next year's Excellence in Print to be held at Martin's West in Woodlawn, MD April 2023

Printing Industry Performance Surveys

 “Financial Benchmarks, Ratios, and Actionable Thoughts from the March 2023 PIPI Survey” report. The report provides benchmarks and ratios to assess your firm’s performance and plan a path forward. The report includes income statements and cost categories as a percentage of revenue, balance sheets and related ratios, and cash management indicators. We had enough surveys to generate numbers for high performers and a few industry segments. In addition to the financial numbers, we provide actionable thoughts for you and your management team. Thanks to all who participated in the survey.

 

Financial Benchmarks, Ratios, and Actionable Thoughts from the March 2023 PIPI Survey

October 2022:  Connecting a Comprehensive Strategic Approach to Printing Firm Performance

October 2022 How Paper Is Affecting Printing Companies and Approaches to Consider

October 2022 Survey Results:  Revenue Trends, Inflation Effects, Business Outlook

April 2022 Survey Results: Revenue Growth

April 2022 Survey Results: Marketing, Sales, Social Media

Paper Supply Chain: A Deeper Look at our PIPI Data

Paper Supply Chain:

A Deeper Look at our October PIPI Data, 

and the BIG Takeaway

Dr. Ralph Williams Jr.

Associate Professor of Management 

Jones College of Business

Middle Tennessee State University

Dr. Richard Tarpey

Assistant Professor of Management 

Jones College of Business

Middle Tennessee State University

Here’s a formula:

Paper mills producing less printing paper + pandemic-related shipping problems from overseas + labor shortages and strikes at mills + an increase in demand = significant delivery delays, some unavailable products, and significantly higher costs. 

A few years ago, who could have imagined that our industry would face these paper supply issues? 

In our October PIPI (Printing Industry Performance and Insights) study, we explored how supply chain problems affected our industry and how high-performing firms reacted to these issues. Recently, we stepped back and took a deeper look at our data to consider what printing company leaders might learn from a 30-thousand-foot overview. What’s the big takeaway?

Applying more sophisticated statistical analysis reinforced what we saw in our first look at the data: higher-performing firms proactively address paper supply issues. They are preemptive in their approach, seeking actions that forestall future disruptions. This strategy contrasts with a reactive approach – applying band-aids when a problem surfaces. Here are examples of proactive supply-chain tactics:

• Seeking relationships with alternative suppliers, even when solid relationships are present.

• Discussing future projects with customers and negotiating plans to order paper well ahead of when the project is ready to start.

• Have scheduled meetings with suppliers to discuss the current situation and have open-ended,  creative discussions of potential approaches.

• Aggressively seek to reduce waste.

• Continuously and objectively assess suppliers’ commitment to your firm and your trust in them.

• Review your history of purchases, consider your sales forecast, and build a paper inventory.

• Continuously monitor relevant financial ratios – such as days-in-inventory and days-in-accounts payable – and adjust as needed.

So, what’s the big takeaway from all this? Be Proactive!

One would think the pandemic taught company leaders to be more proactive in preparing for “black swan” events. However, consider prior events that significantly disrupted supply chains in other industries, such as the Southeast Asia tsunami in 2004 or the Tohoku earthquake and subsequent tsunami in 2011. After these events, many companies discussed the need to be more proactive and more diligent with their risk management strategies, However, 10-20 years later, many had not taken significant measures toward hardening and insulating their supply chain. While it would have been impossible to foresee or mitigate a total shut-down of the global economy, many companies failed to learn from these past events how to undertake a basic proactive approach. 

Let’s expand this “proactive approach” beyond the supply chain. What can you do to prompt “proactive thinking” by your team from a broad view of your firm? 

Most are familiar with “SWOT” (Strengths, Weaknesses, Opportunities, and Threats). But how many of you apply SWOT in your leadership. In consulting printing firms, I found SWOT discussions especially effective in prompting proactive thinking. Indeed, looking back, I should have applied SWOT more in the three printing companies I led. Consider discussing these questions with your team regularly.

• What are our internal strengths (something we do well), and how can we use those strengths to serve our customers better and attract new business?

• What are our internal weaknesses (competitive disadvantages), and what is our plan to address those weaknesses?

• What are potential market opportunities for our company, and what’s our plan to leverage those opportunities?

• What are external threats to the company’s well-being, and what’s our plan to prepare for those possible occurrences?

Bottom line… from the current paper supply-chain issues, grow your team’s ability to think proactively on an ongoing basis. Consider discussing SWOT monthly to prompt proactive thinking. Leaders, take a positive away from the present paper mess!

The Paper Supply Chain Update. The Straight Truth.

No single issue is impacting the printing industry more than the shortage of paper and the significant rise in costs when stock is available. So, on behalf of our print members, we wanted to ask the experts, where we are, how we got there and what does 2022 and beyond look like for our industry. On February 3, 2022. Upwards of 60 participants from over 35 different companies took part in a webinar hosted by Tony Golden of Lindenmeyr-Munroe Paper Co with presentations by Gilbert Goodworth of Domtar Paper and Mike Robinson of Verso.

While we are facing unprecedented challenges, the seeds for our current situation were planted years ago as demand for all grades of printing paper started to fall.  The response on the part of the mills was to close some, reduce capacity at others, take machines offline, and in some cases, repurpose machines to produce products in growing segments like packaging. So, when demand increased in the latter part of 2020 and throughout 2021, at a time of lower overall capacity, unprecedented stress was put on the supply chain and that pressure included pulp, chemicals related to papermaking, and even things like lumber and nails for pallets used in the shipping of paper.  It seemed that everything that could be a problem, became one.

While the current challenges cross all types of paper, the speakers presented two very different perspectives.  Coated paper is heavily dependent on imports for well over 50% of production and the issues facing them include covid’s impact on the workforce, increase in demand, difficulties in the countries of origin and transporting paper through US ports.  Uncoated is primarily made in North America and their problems differ only in that the paper doesn’t have to travel from foreign ports. The 2022 election season will further stress the paper supply, coated cover, in particular, the substrate used for many of the products associated with election mailings and handouts.

While concerns raised by the presenters included machines that are running beyond sustainable capacity, increasing trucking and maritime costs and shortages all along the chain including a significant shortage of truck drivers, there was some good news. Demand continues to be robust with Q4 2021 production 79,000 tons (5%) higher than Q4 202. The presenters shared some statistics about how print products have performed in the last year. There was a 6-9% increase in book sales over 2020, a forecasted increase in commercial print of 5.2-6.2% over 2021 and global direct mail is expected to grow from 71+ billion to 72+ billion in 2022.

Summary

Currently, almost every mill is on allocation/ reservation. There had been a ten-year, or more, lessening of demand for printing papers that the pandemic only exacerbated.  While we are facing the perfect storm of chemical, pulp, pallet supply, shipping challenges, and Covid 19’s effect on workforce, demand increased and affected all grades of sheets and web grades.

At the time of this webinar, no mill can allocate 100% of past usage to their customers, and thus the guessing game each month is how much can the mill supply.  It can be as low as 60% and there is little light at the end of the tunnel for the foreseeable future. All the experts on the webinar stressed that paper machine efficiency is critical and that all machines, coated and uncoated, are running beyond the safe range for sustainability. To add to the difficulties, some machines may have to go offline in 2022 for maintenance. Everything related to the manufacturing and bringing to market of paper has risen significantly since the start of the pandemic. 

What can you do?  Plan ahead with your clients, order well in advance, be flexible about grades and finishes and prepare for a challenging 2022.  At present, there is little light at the end of the tunnel but be assured that the merchants and the mills are doing everything they can to help their customers thrive in, what continues to be unprecedented times!!