OCTOBER 2023 | VOLUME I NUMBER 2
EMPLOYEE HANDBOOKS AND WORKPLACE POLICIES
and
WHAT THIS MEANS FOR ACCS SCHOOLS
In the September edition, attention was drawn to two high profile issues – H.R. 15 (“The Equality Act”), and court rulings on Affirmative Action in college admissions (more on that in upcoming editions). This month, we will address something a bit more mundane, but no less important from a legal perspective…
Employee Handbooks & Workplace Policies
In early August 2023, the National Labor Relations Board (NLRB) released its decision regarding a complaint against Stericycle, Inc., and modified previously adopted rules on how employers may enforce workplace policies. Any rule or policy which has the “reasonable tendency to chill employees from exercising their Section 7 rights” could be considered an unfair labor practice.
So, what are “Section 7 rights?” While originally focused on the formation of and participation in labor unions, the National Law Review notes that the employee rights in Section 7 of the National Labor Relations Act (NLRA) of 1935 are now viewed quite broadly, encompassing a number of activities done for their “mutual aid and protection concerning their terms and conditions of employment.” Rather than merely protecting protests, picketing, or strikes, the NLRA could conceivably be interpreted to allow employees to challenge employer expectations, including ethical standards, codes of conduct, and social media policies, among other “terms and conditions.”
Key components of the recent changes are that employer policies must be narrowly defined, specific, and written with the perspective of the employee in mind. Further, this decision states that policies must serve “a legitimate and substantial business interest.” The NLRB also clarified that they will err on the side of the employee in deciding if their rights have been violated by an employer’s policy.
What does this mean for ACCS schools?
While it is true that “religious schools” have typically been exempt from the requirements of the NLRA, the National Law Review observes that, in recent decisions, the NRLB has “taken an expansive view of who is covered by the NLRA, ostensibly including almost all private sector non-supervisory workers in the country, whether or not employees are organized or represented by a union” (emphasis mine).
Further, the NLRA’s wording regarding its own jurisdiction deserves attention: “The Board will not assert jurisdiction over employees of a religious organization who are involved in effectuating the religious purpose of the organization, such as teachers in church-operated schools. The Board has asserted jurisdiction over employees who work in the operations of a religious organization that did not have a religious character, such as a health care institution.”
Note that, given the new rules, employees would be allowed to determine if they are “involved in effectuating the religious purpose” of the school. It is important to specifically state and describe how each employee is integral to the “religious purpose” of the school. Job applications, employee contracts, and school handbooks should make this explicitly clear. Further, if your school is not “church-operated” (that is, by one particular denomination or congregation), it would be wise to ensure your school’s Christian identity and purpose are made abundantly clear in those same documents.
In light of these changes, it is important to conduct a thorough review of employee handbooks and policies. And, while the overwhelming majority of ACCS teachers and other workers may be exemplary employees, school boards and leaders need to avoid potential problems and miscommunication.
Here are a few questions to consider:
- Does your employee Code of Conduct explicitly connect their expected behavior to the “religious purpose” of the school? For example, are the expected behaviors linked to Scripture?
- Does your employee Code of Conduct specifically cover their behavior off-campus, or only behavior while “on duty?
- Does your employee Code of Conduct include a social media policy that is also tied to the “religious purpose” of the school?
Grace & Peace,
Brian Phillips, Ed.D.
If you are in search of legal advice for you or your school, please consider the following resources: Brotherhood Mutual and Alliance Defending Freedom
Brian Phillips is the pastor of Holy Trinity Reformed Church (CREC – Concord, NC), teaches Rhetoric at Oaks Classical Christian Academy (Albemarle, NC), and is Board Vice Chairman for New Aberdeen College. Brian has also served as the Director of Consulting for The Circe Institute, Head of Upper School at Covenant Classical School (Concord, NC), and was an adjunct faculty member of Belmont Abbey College.
Dr. Phillips has an M.A. in Theological Studies, an M.A. in Classical Studies, an Ed.D. in Classical Education, and completed paralegal training at Duke University. He is also the author/editor of several books, including Sunday Mornings: An Introduction to Biblical Worship and the Canon Classics Guides to Dante’s Inferno and the Meditations of Marcus Aurelius. Brian and his wife, Shannon, live in North Carolina with their four children and their German Shepherd, Ajax the Great.