The federal government has released new I-9 forms that are required to be used by all employers beginning tomorrow, on May 7, 2013. The new forms should be used only for newly hired employees. As most employers are aware, the I-9 form is used to verify that a new hire is legally authorized to work in the United States. A copy of the new I-9 form is available here.
While the new forms do not make significant changes in the verification process, there are a few differences. Both the old and new forms have three sections: Section 1 to be completed by the employee; Section 2 to be completed by the employer; and Section 3 to be completed if there is a need to re-verify an employee’s eligibility to work in the United States. The new form also asks for an employee’s email address and telephone number so that Immigration and Customs Enforcement (ICE) and the Justice Department’s Office of Special Counsel (OSC) can conduct follow-up interviews of employees more easily when I-9 audits of employers are performed. While the Bush administration appeared to target its enforcement activities against undocumented workers, the Obama administration seems more focused on targeting employers for work eligibility violations related to I-9 forms. ICE and OSC have stepped up their enforcement actions during the past few years in targeting employers for I-9 violations. ICE audits of employer I-9 forms have increased from over 250 in 2007 to over 3,000 in 2012, according to data provided by the Associated Press.
Additionally, the new form is now two pages instead of one page. While the new form more prominently requires the employee to attest to his or her citizenship or immigration status (and thus eligibility to work in the United States), the two-page format may increase retention costs for larger employers, and may increase the risk that one or both pages of the I-9 form may be misplaced or lost, which is tantamount to a failure to complete the I-9 form.
Takeaway: Be sure to start using the new version of the I-9 form no later than May 7, 2013. The failure to use the correct form may subject an employer to liability if ICE conducts an I-9 audit. With an increasing emphasis on employer I-9 audits by the current administration, it is more important than ever that employers ensure that I-9 forms are properly completed when an employee is hired.
Recently, President Obama announced his intention to nominate three members to the National Labor Relations Board (“NLRB”), but the legal status of the NLRB is far from clear.
The five-member NLRB issues decisions that interpret and apply the National Labor Relations Act (“NLRA”) to employers and unions. The NLRA impacts both union and non-union companies. The five members of the NLRB serve staggered terms and must be nominated by the President and confirmed by the Senate. On April 9, 2013, President Obama renominated current Democratic Chair Mark Gaston Pearce, whose term expires on August 27, 2013. Pearce is a union-side labor attorney from Buffalo, New York. The President also nominated two management-side labor attorneys, Republicans Philip Miscimarra and Harry I. Johnson III. Miscimarra is a partner with Morgan, Lewis & Bockius in Chicago, and Johnson is a partner with Arent Fox in Los Angeles.
These three nominees join two other Democrats who were previously nominated, Richard Griffin and Sharon Block. Griffin is a former General Counsel for the International Union of Operating Engineers, and Block is a former staff counsel to the late Senator Edward Kennedy, and served under former Democratic Secretary of Labor Hilda Solis. Griffin and Block are currently serving as “recess” appointees to the NLRB.
Part of the problem with the five NLRB nominations is that the recess appointments of Griffin and Block were declared unconstitutional and invalid earlier this year by the District of Columbia Circuit Court of Appeals in Noel Canning v. NLRB. Under that decision, all of the NLRB decisions issued after Griffin and Block were named recess appointees on January 4, 2012 are void because the NLRB lacked the three-member quorum necessary to issue decisions. On April 25, 2013, the NLRB recently requested discretionary review of the Noel Canning case by filing a petition for a writ of certiorari with the U.S. Supreme Court.
Some Senate Republicans have declared their intent not to confirm the package of the five NLRB nominations since it includes the two “recess” appointees who were previously declared unconstitutional. Whether the Senate will actually confirm this package of nominees seems up in the air at this point given the position of many Senate Republicans.
During 2012, the NLRB issued a number of decisions which are viewed as tilting the playing field in favor of unions and employees, and have drawn the ire of employers. Some of these decisions also impact non-union employers in areas like social media, employment at-will statements, and confidentiality of investigations involving employee misconduct. But these decisions, for the time being, have been declared void by the D.C. Circuit Court of Appeals. At the same time, Chairman Pearce has announced his intent to have the NLRB continue with business as usual, even though the D.C. Circuit has ruled that the 2012 decisions were invalidly issued when the NLRB did not have a quorum.
To add greater uncertainty to the mix, the House of Representatives narrowly passed a bill on April 12, 2013, essentially along party lines, that would strip the NLRB of authority to take any substantive action until the Supreme Court rules on the anticipated appeal of the Noel Canning decision, or the Senate confirms a quorum of members to the NLRB. This bill is HR 1120, titled “Preventing Greater Uncertainty in Labor-Management Relations.” A similar bill was previously introduced in the Senate. But the Senate bill died in committee, and was never brought up for vote by the full Senate – which is not surprising given the Senate’s Democratic majority. Now that the House passed HR 1120, the Senate will likely be forced to at least consider the issue.
Even if the Democratic-controlled Senate were to pass the bill (which seems highly unlikely), President Obama has indicated that he would veto the legislation rather than concede that his recess appointments were unconstitutional and that the NLRB lacks authority to take any action since it does not have a quorum, at least according to the Noel Canning decision. And it is far-fetched to think that a presidential veto would be overridden by the needed two-thirds majority vote in both the House and the Senate.
- So where does this leave employers? Confused about the current state of labor law and waiting for action by the Supreme Court, most likely. Even if the Supreme Court grants discretionary review of Noel Canning, it is unlikely that the Supreme Court would issue any decision resolving this dispute before sometime next year.
- Why should employers care about this dispute? Even though the NLRB’s 2012 decisions are void according to the D.C. Circuit, Chairman Pearce is expected to continue to have the various Regional Offices of the NLRB investigate and prosecute violations of the NLRA following the precedents set by 2012 NLRB decisions. Employers that want to challenge the findings of a Regional Office about alleged unfair labor practices that violate the NLRA will initially go to trial before an NLRB Administrative Law Judge, who will likely follow the 2012 NLRB decisions, at least until the Supreme Court rules otherwise. Thus, employers would be wise to consult with labor counsel before taking action with respect to unions, or taking action against employees in areas like social media, at-will statements, or confidentiality of investigations, all of which now have the close attention of the NLRB. Stay tuned.
Maintaining Confidentiality During an Employer Investigation is a Good Idea, Right? Not So Fast Says the NLRB
Consider the following scenario. An employee complains to a supervisor about harassment by a coworker. The supervisor refers the complaint to human resources. An HR supervisor interviews the complainant, the harasser, and the witnesses, and instructs the employees to keep everything discussed confidential – a perfectly acceptable instruction, right?
Not so fast according to the National Labor Relations Board (NLRB). As part of a continuing series of decisions making life more complex for employers, in Banner Health System, 358 NLRB No. 93 (2012), the NLRB ruled that such a request violated the National Labor Relations Act (NLRA). In Banner Health, the employer utilized a form that contained an instruction to employees that prohibited talking about the investigation. Additionally, the HR rep conducting the interviews testified that she gave the instruction not to discuss the investigation while it was ongoing.
The NLRB concluded that the employer’s “blanket” rule approach to confidentiality was overbroad and therefore unlawful because it restrained employees from exercising their Section 7 rights to engage in protected and concerted activity (such as discussing workplace misconduct) under the NLRA.
Takeaway: When conducting an investigation into possible employee misconduct, an employer must make a case by case assessment of whether there is a need for confidentiality. Issues such as whether witnesses need protection, there is a danger of evidence being destroyed or testimony being fabricated, or a need to prevent a “cover up,” are issues to be considered in determining whether to instruct employees that the investigation must be kept confidential. Be sure to consult your labor counsel to determine when it is appropriate and lawful to insist upon employee confidentiality.
It is fairly common for an employment agreement to require that an employee maintain confidentiality of employer information, and refrain from making critical or defamatory comments about the employer. Recently, an NLRB Administrative Law Judge (ALJ) found these kinds of provisions to be unlawful in an employment agreement.
In Quicken Loans, Inc., 28-CA-75857, JD(NY)-03-13 (Jan. 8, 2013), an employee worked for the employer as a mortgage banker. The employee resigned in 2011. Shortly after the employee resigned, the employer sued the employee for violating the company’s “no contact/no raiding” and non-compete provisions of the employment agreement. Part of the agreement contained a prohibition on disclosing confidential information, which was defined to include “non-public information relating to or regarding the Company’s business, personnel, customers, operations, or affairs,” and further was defined to include “personal information of co-workers, managers, executives, and officers, handbooks, personnel files, personnel information such as home phone numbers, cell phone numbers, addresses, and email addresses.”
The employment agreement also included a non-disparagement clause which required that employees “not publicly criticize, ridicule, disparage, or defame the Company through any written or oral statement.” In response to being sued, the mortgage banker filed an unfair labor practice charge with the NLRB, claiming that the confidentiality and non-disparagement clauses were unlawful. After a trial, the ALJ agreed.
The ALJ found that the confidentiality restrictions were unlawful because the restrictions would have a chilling effect on employees’ Section 7 rights to discuss the names, wages, addresses, or telephone numbers of other employees with their coworkers or union representatives.
The ALJ also found that the non-disparagement clause was unlawful. Because Section 7 of the NLRA allows employees the right to criticize their employers, the ALJ reasoned that the non-disparagement clause could be viewed by an employee as restricting the Section 7 right to engage in protected concerted activities.
Takeaway: While the ALJ’s decision is not binding precedent unless it is appealed to and upheld by National Labor Relations Board, it is a good example of the NLRB General Counsel’s expansive view of the NLRA. Employers should consult their labor counsel whenever they intend to limit disclosure of information by employees or restrict employee comments about the employer or coworkers as part of an employment agreement or policy to ensure compliance with the NLRA.
Employers must begin using new Fair Credit Reporting Act (FCRA) forms no later than January 1, 2013. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 transferred FCRA rulemaking authority from the Federal Trade Commission (FTC) to the newly created Consumer Financial Protection Bureau (CFPB).
The FCRA regulates employers who use background checks provided by third parties, known as Consumer Reporting Agencies (CRA), as part of the employment process. Before an employer may obtain a background check on an applicant or employee from a CRA, the applicant or employee must be given certain information about the scope of the background check and must consent to the background check. This is where the new forms are relevant. The main change in the forms is that consumers must now contact the CFPB, rather than the FTC, about their rights under the FCRA.
What is confusing for employers is that the FTC’s website still has the old forms on it, and still has information about the FCRA, even though the CFPB is now the agency responsible for the FCRA and background checks. The new forms are not easy to locate, but can be found on the government’s website at the end of a very long document. You need to know that you are looking for Title 12, Banks and Banking Regulations, of the Code of Federal Regulations. Go to http://www.ecfr.gov/ in order to find the forms. Once you are at that website, find Title 12 “Banks and Banking,” and then scroll down to Part 1022, called “Fair Credit Reporting.” The actual forms for employers and CRAs are found at Appendix K (for employers) and Appendices M and N (for CRAs). Or you can access the new forms by using the links below.
The first of the new forms is called “A Summary of Your Rights Under the Fair Credit Reporting Act.” Employers must provide this form to applicants and employees when issuing a pre-adverse action letter, and in some other situations. PDFs for this form can be found here.
The second new form is called “Notice to Users of Consumer Reports: Obligations of Users Under the FCRA.” This form must be provided by a CRA to users of their services, like employers. PDFs for this form can be found here.
The last new form is called “Notice to Furnishers of Information: Obligations of Furnishers Under the FCRA.” The FCRA requires CRAs to give this notice to entities that provide information under certain circumstances, such as when a consumer disputes some information in the background report. PDFs for this form can be found here.
Takeaways: Employers need to make certain they are using the correct “Summary of Rights” form no later than the beginning of 2013. Employers who fail to comply with the FCRA or to use the new forms may be subject to lawsuits for actual damages, attorney’s fees, statutory damages, and possibly punitive damages, depending upon whether the failure to comply with the FCRA was negligent or willful.
The Department of Labor’s (DOL) prior set of forms for the Family and Medical Leave Act (FMLA) expired at the end of 2011. Most employers expected that the DOL’s newer forms, which can be found here, would comply with applicable laws. Unfortunately, the DOL’s new FMLA forms, which state that they are valid through February 28, 2015, don’t comply with the Genetic Information Nondiscrimination Act (GINA).
Although GINA generally prohibits employers with 15 or more employees from requesting or requiring “genetic information” from any applicant or employee, there is a safe harbor for employers who inadvertently receive genetic information in response to a lawful request for medical information, such as for FMLA purposes.
Employers who lawfully request medical information from a health care provider for FMLA certification purposes should include the following recommended “safe harbor” language found in the GINA regulations when making a request:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees and their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. “Genetic information,” as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
Employers who use this language and still receive genetic information from a health care provider will be deemed to have received the information inadvertently.
Takeaway: Employers should realize that they cannot always rely on government forms. Employers should add the GINA ”safe harbor” language to any requests for medical information under the FMLA in order to avoid potential liability for GINA discrimination claims. The failure to do so leaves an employer at risk for possible discrimination under GINA, depending upon the type of information received in response to such a request. For more tips on complying with GINA, click here.
The National Labor Relations Board (the “Board”) recently issued a decision that has garnered much attention. In Banner Health System, the Board opined that an employer may lawfully advise employees to refrain from discussing an ongoing investigation with coworkers only when it has a legitimate business reason that outweighs the employee’s rights under Section 7.
While the Board’s decision in Banner Health is certainly putting the issue of confidentiality instructions on the list of things an employer must worry about when conducting workplace investigations, it may not be the employer’s only labor relations consideration. For example, where a union is present, and the employer seeks to interview an employee concerning her conduct, the employer must take care not to deny the employee her Weingarten rights. Thus, in unionized settings, bargaining unit employees may demand to have a union representative present for an investigative interview if the employee reasonably believes she may be disciplined for something she says. Upon receiving a valid request for union representation, the employer is permitted one of three options: (1) grant the request; (2) cancel the interview; or (3) offer the employee the choice of either continuing the interview without a union representative or pass up the opportunity to give their own side of the story. However, an employer is under no obligation to permit a union representative to attend a non-investigative meeting solely for the purpose of imposing discipline, or a meeting where an employee cannot form a reasonable belief that the interview may lead to the imposition of discipline.
Finally, where a workplace investigation is conducted in preparation for the trial of an unfair labor practice charge, an employer must notify employee witnesses of the purpose for the interview, and provide assurances as to the employee’s rights and the scope of inquiry. Generally, the notice will take the form of a written notice of rights – often called a “Johnnie’s Poultry” notice – to be signed by the employee witness and retained by the employer.
Takeaways: An employer should be aware of the protections afforded union and non-union employees when it plans to conduct workplace interviews. The employer should prepare in advance for the interview, taking into consideration the circumstances under which the interview will be conducted. The employer should determine whether the interview is investigative or disciplinary; how it will respond to a demand for representation; and the limits to an employee’s representational rights?
Recent lockouts of NFL referees and NHL players have once again brought labor disputes to the forefront of the media. Additionally, the lockout of sugar beet processing workers in Minnesota and North Dakota by American Crystal Sugar has continued to drag on for over a year now. These recent situations highlight a relatively uncommon occurrence in labor disputes – the lockout.
In a labor dispute there are two main economic weapons – the strike and the lockout. If employees choose to withhold their services and strike, the employer has the right to hire replacement workers. Replacements may be permanent or temporary, depending upon whether the employees are striking over disputed contract terms or whether the employees are striking in protest of an employer’s unfair labor practice. Strikers generally may not collect unemployment benefits while they are on strike. When the employees end their strike, the employer is required to rehire them if there were temporary replacements. If the employer hired permanent replacements, the strikers are placed on a preferential recall list and may return to work as the permanent replacements resign or are terminated, however many months or years that may take.
In contrast, a lockout occurs when an employer refuses to allow employees to come to work. The lockout may be offensive to put pressure on employees to accede to the employer’s contract demands, or it may be defensive in response to a threatened strike by employees. In either situation, the employer may only hire temporary replacements. Additionally, because the employees are readily available to work and are unable to do so through no fault of their own, locked out employees are generally eligible for unemployment benefits. The employer must also inform the locked out employees and their union what contract demands the employer has that will end the lockout, if agreed to by the union.
Both the strike and the lockout are akin to high-stakes poker in a labor dispute. There is risk and the potential for great losses in either event. Lockouts, however, are far more unusual than strikes, in part because of the greater costs to the employer and the inability to hire permanent replacements. In a lockout situation, the employer faces potentially high costs associated with replacement workers, added security and transportation costs for replacements, and unemployment benefit costs, among others. Despite the greater costs, some employers may view a lockout as a viable tool in a labor dispute, particularly where the employer has the economic ability to pay for a lockout, or where an employer may be concerned about its vulnerability to a strike negatively impacting the employer’s ability to meet customer demands, or to care for patient needs in the health care industry.
Takeaway: The decision to lockout employees during a labor dispute has many significant legal, financial, and practical implications. An employer contemplating a lockout in a labor dispute would be well served by consulting with counsel far in advance of contract expiration to consider all of the pros and cons of such an action. A lockout should not be undertaken lightly as miscalculations or rash actions could prove to be very costly.
The National Labor Relations Board (the “Board”) recently issued a decision concerning employee interviews that has garnered much attention. In Banner Health System, the Board found that an agent of the employer violated the Act by advising an employee witness to refrain from discussing the matter with coworkers while the investigation was ongoing. The Board opined that an employer may lawfully advise employees to refrain from discussing an ongoing investigation only when it has a legitimate business reason that outweighs the employee’s rights under Section 7. The Board rejected Banner Health’s argument that its rule served to protect the integrity of the investigation, stating that an employer must first determine whether evidence of concern exists – e.g., that witnesses need protection, evidence is in danger of spoliation, or there is potential for a cover-up.
Takeaways: Employers should remember that the rule established by the Board in Banner Health will apply to them even if their employees are not represented by a labor union. Unfortunately, at this early date, it is not clear what kind of evidentiary showing would be sufficient to convince the Board that a confidentiality instruction is warranted, but one must wonder if it will be possible for a concerned employer to put the genie back in the bottle after conduct sufficient to warrant a confidentiality instruction has taken place.
The annual EEO-1 Report filing deadline is quickly approaching. The EEO-1 Report is a compliance survey report mandated by federal statute and regulations. It requires employers to categorize employment data by race/ethnicity, gender and job category and file a report with the United States Equal Employment Opportunity Commission (EEOC). Most private employers who have 100 or more employees must file this report, along with private employers with fewer than 100 employees if the company is affiliated with another company and the entire enterprise employs a total of 100 or more employees. Additionally, most federal government prime contractors or first-tier subcontractors with 50 or more employees and a contract worth $50,000 or more must also file the EEO-1 Report. The filing deadline for the EEO-1 Report is September 30th.
Remember that is important to correctly answer the question on the EEO-1 Report about whether the employer is a federal government contractor. Incorrectly answering this question may lead to an audit by the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) of the employer’s affirmative action program.
Takeaway: Employers should take care to not only file the EEO-1 Report in a timely fashion, but to also carefully complete the Report so that it is accurate. Inaccurate or incomplete reports may lead to further investigation by the EEOC or the OFCCP, which employers would be wise to avoid if possible. More information about the EEO-1 filing requirements may be found on the EEOC’s website at www.eeoc.gov/employers/eeo1survey.
The 26,000 members of the Chicago Teachers’ Union went on strike at the beginning of last week. A tentative deal to end the strike was announced last Friday, but the strike has not yet been fully resolved. For many, the strike is interesting because of its political implications. Chicago is President Obama’s adopted hometown, and its Mayor, Rahm Emmanuel, is a Democrat who counted on organized labor to help him get elected. These circumstances create real life drama and great fodder for political pundits. But the strike is also interesting because in many ways it is quite different from the typical high-profile labor dispute. In Chicago, the primary disputes between the teachers and the School District are over “non-economic” issues.
Generally, when a high profile labor dispute hits the national news, the parties are at odds over wage and benefit provisions – the so-called “economic” issues. In bargaining, parties frequently bifurcate the bargaining process; getting the “easy” non-economic issues out of the way before tackling the divisive wage and benefit proposals. However, an employer who focuses exclusively on the economic issues does so at its own peril. Non-economic issues – including work jurisdiction, bumping and recall rights, seniority, discipline and discharge, and grievance procedures – have significant implications for the operation of a business.
While not directly economic in nature, the non-economic provisions of a labor contract often result in significant cost for employers. This is because non-economic provisions generally work to limit an employer’s ability to efficiently and profitably manage its business. For example, many labor agreements contain work jurisdiction provisions that designate the work that can be performed by bargaining unit position. It is also not unusual to see provisions in contracts that limit an employer’s ability to introduce new technologies or production methods, or that impose staffing and scheduling requirements. Such provisions hamstring an employer’s ability to timely respond to market trends, and introduce new technology or production methods. As in Chicago, non-economic provisions can also compromise an employer’s ability to create and manage a high performance work team. Progressive discipline and grievance provisions can make it difficult, if not impossible, to eliminate poorly performing workers; and seniority provisions often force employers to let ambitious and motivated less senior employees go in favor of employees who may or may not measure up.
- In first contract bargaining, fight hard to exclude or at least limit non-economic provisions that make it harder to run your business efficiently and profitably. First contract bargaining is your best chance to succeed on this front.
- Don’t ignore non-economic issues when bargaining successor agreements. While the primary focus may still be on wages and benefits, non-economic terms may also have costs. They also tend to be more important to the union than they are to management, and should be part your overall bargaining strategy.
Much has been written about the National Labor Relations Board’s (the “NLRB”) attempt to promulgate union friendly rules like the “quickie” election rule and notice posting rule. However, for most American employers, the NLRB’s drive to scrutinize long-standing work rules should be more worrisome. While the NLRB is not necessarily attempting to make “new” law, it has found new ways to apply established standards. The mischief here is that the Board has articulated interpretations of the rules that it deems to be “reasonable,” that can best be described as attenuated, and with the result that longstanding and seemingly benign work rules were found to violate the NLRA.
Seizing upon its 1998 decision in Lafayette Park Hotel, the NLRB now appears to be looking for policies to scrutinize regardless of any alleged improper application, and may well declare them unlawful even absent any evidence of unlawful enforcement. 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999) (stating “[w]here the rules are likely to have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an unfair labor practice, even absent evidence of enforcement.”). Thus, if the NLRB finds that an employee could “reasonably construe” an otherwise innocuous work rule in such a way as to limit that employee in pursuit of his or her rights under Section 7, the rule will be declared unlawful.
A review of recent decisions, demonstrates the wide net being cast by the NLRB:
• In American Red Cross Ariz. Blood Servs. Div., Case No. 28-CA-23443, an ALJ found the “at-will” provision in the employer’s employee handbook to interfere with employees’ Section 7 rights. The ALJ determined that an employee could reasonably construe the clause “I further agree that the at-will employment relationship cannot be amended modified or altered in any way” to require that the employee agree not to engage in any union organizing effort or enter any other agreement modifying the his or her at-will employment.
• In Banner Health System, 358 NLRB No. 93, the NLRB found that an agent of the employer violated the Act when conducting workplace investigations by advising complaining parties to refrain from discussing the matter with coworkers while the investigation was ongoing. The NLRB opined that an employer may lawfully advise employees to refrain from discussing an ongoing investigation when it has a legitimate business reason that outweighs the employees rights under Section 7. The NLRB rejected Banner Health’s argument that its rule served to protect the integrity of the investigation, stating that an employer must first determine whether witnesses need protection, evidence is in danger of spoliation, or there is potential for a cover-up.
Takeaways: By now, most employers have reviewed and revised social media policies in light of the attention given them by the NLRB. However, it is increasingly clear that employers should review all employment-related documents to determine whether any other policies might be deemed unlawful by the NLRB. There is little question the NLRB will scrutinize any and all employment-related rules or policies if given the chance, including handbooks and work rules certainly, but also form documents, disciplinary communications, and just about any other communication between an employer and its employees that establishes a standard of conduct. Look for handbook provisions and rules that are awkward, vague or overbroad, and anticipate the potential interpretations that may be conceived by an NLRB investigator. Problematic provisions should be reconsidered. If they are necessary, they should be revised to clearly define what is or is not prohibited, and to ensure they do not implicate protected conduct. Unfortunately, while including a disclaimer is not a bad idea, a simple clause declaring that no rule or provision is intended to nor will be enforced in a manner to limit Section 7 rights is not considered sufficient to save an “offending” provision.