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Writing effective Handbooks is one of the most overlooked areas of a company. However for a while the language found in handbooks could create liability for companies. That seemed to change in December 2017 when the NLRB issued its decision in Boeing. But since then employers have faced significant confusion about how the Board would evaluate workplace policies under the NLRA and how to place workplace rules into the three categories defined in the decision. On June 6, 2018, the general counsel of the NLRB published guidance on how the Boeing standard should be applied. We gained tremendous insight into not only what is acceptable under the NLRA but also what types of items we should be including in our employee handbooks.
The Boeing decision is a significant departure from the prior standard for evaluating the lawfulness of workplace rules as it uses a two-part test that balances a worker’s NLRA rights against the employer’s legitimate business justifications for the rule. Boeing also set forth a categorizing system labeling workplace rules as either Category 1 (rules that are generally lawful to maintain), Category 2 (rules requiring individualized scrutiny), or Category 3 (rules that are unlawful to continue). Even with this framework, there remains a great deal of room for subjectivity and nuance when evaluating handbook rules under the Boeing standard.
Stuart Silverman has been practising law for almost 30 years and is the principal of the Law Offices of Stuart M. Silverman, P.A., located in Boca Raton, Florida. The emphasis of his practice is in the area of labor and employment law and business and commercial litigation. Mr. Silverman has represented both private and public employers, as well as individual employees in a whole host of complex business disputes and employment settings at administrative levels and state and federal trial and appellate courts. His extensive employment litigation experience includes claims under age, race, sex discrimination, wage and hour claims, whistle-blower and retaliation claims, ADA and FMLA claim, public employee's claims, as well as disputes under employment contracts, non-compete agreements, trade secrets disputes and partnership breakups. Mr. Silverman is a frequent speaker on his areas of practice.
Mr. Silverman focuses on helping businesses by taking a proactive approach to their employment and business law needs and provide assistance with compliance on workforce issues, employment handbooks and policies, employee contracts, non-competition and non-solicitation agreement, partnership agreements, shareholder agreements, contracts and buyouts and severance issues and commercial leases. He is also a member of The Workplace Violence Prevention Institute ("WPVI") a group formed to investigate solutions and strategies from a proactive and systemic perspective to minimize the risk of workplace violence, specifically violence caused by employees or former employees. He earned his B.A. degree, with high honors and his J.D. degree from Rutgers University. Mr. Silverman is admitted to The Florida Bar and the U.S. District Court for the Southern District of Florida.