8-28-2018; Trying to get our arms around Pritzker and Rauner and what it means to IL WC: Guidance from the NLRB About Your Employee Handbook and more

/

Synopsis: Trying to Get Our Arms Around Pritzker and Rauner and IL Work Comp.

 

Editor’s comment: The most recent polls confirmed Billionaire J.B. Pritzker is 16 points ahead of incumbent Governor Bruce Rauner. In my view, Governor Rauner made a significant but innocent mistake to sign off on a bill that will allow state funding for the Big A. If you don’t know what that means, send a reply and I will let you know. One problem with the IL Republican Party is the Big A is their most defining issue and they are rabid to jettison any candidate that doesn’t tow their ideological line about it. Most of them are openly willing to lose any and every election, so long as the party line on the Big A is followed. Current Governor Bruce Rauner is now on the irrevocably wrong side of such rabid voters. Drat.

 

Who is J.B. Pritzker?

 

He is basically Hyatt Hotels. Reports indicate he is worth or soon will be worth $3.4B. His political career is mildly checkered as he made an interesting decision to yank toilets out of a house to save a couple of bucks on real estate taxes. As a zillionaire, he is aligned with the outwardly rabid Democrat Michael Madigan who has been the Speaker of the Illinois House for about a millennium. Speaker Madigan has unquestionably created the crisis in our State where virtually trillions were borrowed to pay the retirement and health costs of several hundred thousand loyal supporters. Every election in this State is dominated by such voters who could care less about Mike Madigan or whoever the gubernatorial candidate might be—their goal is to protect their fake and unfundable government pensions that will pay them exponentially more in retirement than they made or contributed while working.

 

Speaker Madigan manipulated—gerrymandered--all the voting districts in this State to render any opposition or contrary opinion worthless. You can’t get into public office in mainstream Illinois without this megalomaniac supporting you.

 

J.B. Pritzker knows of Mike Madigan and the shenanigans that followed. Candidate Pritzker doesn’t appear to care at all, even though he is a zillionaire. We are sure Pritzker wants

 

  • Legalization of marijuana at the State level—it will still be illegal on the federal level (Unless Mr. Bad-Hair in Washington D. C. decides otherwise);
  • An hilariously high minimum wage at $15 per hour. Please note my view this is going to cause thousands of jobs to move to other bordering States, as it is almost twice the current U.S. minimum wage. Why would you keep lower-paid jobs here?;
  • Higher to really higher Illinois income taxes—it is very odd to see very few voters actually care about much higher income taxes and be willing to vote for J.B. despite his open support for this issue (please note this is set to happen in about 75 days from today);
  • Plans for a graduated income tax that will be pointed back at J.B. Pritzker and other millionaires/billionaires, like doctors, lawyers and Indian chiefs—assume many of them may relocate out of Illinois to avoid this burden;
  • Possibly lower real estate taxes—Rotsa Ruck with that one folks. J.B noted some local taxes are comically high--that is J.B Pritzker at his hogwash best because he won’t bring them down.

 

What Does This Election Mean to Workers’ Comp in Illinois?

 

My reliable sources tell me, if/when J.B. Pritzker gets into the Governor’s Mansion, the “secret-powers-that-be” who run the IWCC aren’t going to change much about what has happened or is going to happen in this nutty State’s WC system. No wacky legislative changes are planned or in the works. It would appear the lower or mid-range values for IL WC claims are going to be with us for the near future. Keep your fingers crossed.

 

A couple of Arbitrators may be let go but lots of the current mainstays will remain. J.B. Pritzker isn’t going to sweep the IL WC house clean.

 

It is very odd to note the State of Oregon WC Premium Rankings may be issued just days or a week or two after our state-wide election. Governor Rauner isn’t going to be able to point to the various improvements in lower WC costs due to his actions in locating/selecting reasonable and fair Arbitrators across our State. Watch this space for the rankings when they are published.

 

Please also watch this space for any moving-forward trends or changes to IL WC law and practice—if we hear/learn about it, we promise to tell what we hear.

 

In Short

 

Our current worry isn’t changes/amendments to the IL WC Act. Our main concern will be the zillionaires of ITLA or the Illinois Trial Lawyers Assn. In my view, these megalomaniacs are going to want “bang for their buck” to modify/re-define the law to insure they get six, seven and eight figure verdicts. For the next four years, anyone who gets in their way may get mowed down. We expect lots of employers and other humans to move away, as fast as they can.

 

We will have to wait and see and report to you, as we always do. We appreciate your thoughts and comments. Please post them on our award-winning blog.

 

 

 

Synopsis: NLRB General Counsel Issues Much Needed Guidance on Lawful Employee Handbook Provisions.

 

Editor’s comment: Our newly appointed General Counsel to the National Labor Relations Board, Peter B. Robb, recently issued comprehensive new guidance on employee handbook provisions. The guidelines direct the NLRB's Regional Directors throughout the country to reverse course from years of decisions issued by the Board majority appointed by our prior President.

 

Under the previous Board numerous workplace rules commonly found in employee handbooks, were declared unlawful. Specifically, a long line of NLRB decisions considered many standard provisions interfered with or restrained employees in exercising their right to engage in "concerted activities" protected by Section 7 of the National Labor Relations Act. The rationale used to justify such an extraordinary expansion of labor law was based on a hypothetical question: "could" employees interpret a given handbook provision to tamp down their right to strike, or to join together in protest of wages or other terms and conditions of employment?

 

All too often the NLRB answered this hypothetical question in the affirmative, declaring basic workplace rules on civility, confidentiality, misconduct, etc. violated employee rights. These decisions and the vague, hypothetical theory on which they were based left employers in the dark as to what they could include in their employee handbooks without breaking the law. The new guidelines restore the rights of employers to maintain reasonable work rules.

 

The guidelines break typical handbook provisions into three categories

 

  • those likely to be legal,
  • those that might be legal depending on the details, and
  • those that are illegal.

 

Obviously, these categories are to be used merely for general guidance and the legality or illegality of any handbook provision may turn on the specifics; e.g., any provision adopted/implemented, or selectively enforced purely to restrain union organizing or to interfere with other protected rights of employees, is unlawful. Nevertheless, General Counsel Robb's guidelines are helpful to employers and labor attorneys, alike, making handbook drafting much easier and much more predictable when it comes to complying with federal labor law.

 

Here are the categories and major types of workplace policy the General Counsel has placed in each:

 

Category 1: Rules that are generally lawful to maintain.

 

A. Civility rules.

B. No-photography rules and no-recording rules.

C. Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations.

D. Disruptive behavior rules.

E. Rules protecting confidential, proprietary, and customer information or documents.

F. Rules against defamation or misrepresentation.

G. Rules against using employer logos or intellectual property.

H. Rules requiring authorization to speak for company.

I. Rules banning disloyalty, nepotism, or self-enrichment.

 

Category 2: Rules warranting individualized scrutiny.

 

A. Overly broad conflict of interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union.

B. Confidentiality rules broadly encompassing "employer business" or "employee information" (as opposed to confidentiality rules regarding customer or proprietary information or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions).

C. Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees).

D. Rules regulating use of the employer's name (as opposed to rules regulating use of the employer's logo/trademark).

E. Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer's behalf).

F. Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work).

G. Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

 

Category 3: Rules that are unlawful to maintain.

 

A. Confidentiality rules specifically regarding wages, benefits, or working conditions.

B. Rules against joining outside organizations or voting on matters concerning employer.

 

These federal guidelines are purportedly based on a balancing of employer's rights to maintain a safe and productive workplace, through work rules, against the rights of employees to engage in protected, concerted activities.

 

This differs drastically from the Board's decisions in recent years, which emphasized only employee rights and viewed handbook provisions only in the hypothetical (i.e., "could they" restrain employees, not do they).

 

With this in mind, employers are well-advised in drafting any workplace policies to ask themselves: why do we need this work rule and what legitimate business purpose does it help accomplish? Answering this question not only helps craft well written, focused handbook provisions on employee conduct, it also supplies the sort of justification the new National Labor Board may be willing to consider in determining the lawfulness of any handbook provision, by balancing the employer's and employees' rights.

 

We appreciate your thoughts and comments. Please post them on our award-winning blog.