The Department of Labor and the National Labor Relations Board are out of touch with today's workplace

The purpose of this blog is not to provide advice to employers struggling to deal with the changes or lack of changes in the various employment-related government agencies. Rather, it is to complain that the National Labor Relations Board (NLRB) and the Department of Labor (DOL), specifically, the Fair Labor Standards Act (FLSA), are historic anachronisms. 

The world and, more specifically, the workplace have changed so much since these government entities and their various regulations came into being. Consider the FLSA, for example.

Created in 1938, the Act was, at its most basic level, established to provide rules governing overtime pay in an industrial world. Today, this act covers more than 75 million workers who perform jobs that only existed in science fiction in the 1930s. 

To say that the FLSA is a bit outdated is a serious understatement.

In March of this year, President Obama proposed changes to the FLSA that, among other things, would require overtime for several million currently exempt employees. While it is commendable that the President recognized the need to update the Act, the proposed changes fall abysmally short of bringing the Act in line with today’s workplace. In order for our nation to be competitive in a global market, we need workplace policies that are flexible and responsive. American businesses would greatly benefit from the elimination of vast segments of the outdated Act. Or, at minimum, numerous sections need to be brought up to 21st century standards and demands.

In contrast to the DOL, which has changed little since its inception, is the NLRB, an agency in search of a mission. Clearly, with unionization at a historic low point, the NLRB’s original mission has been eviscerated. It is beyond debate that private sector unionization has eroded from 35% to around 7% since WWII and that that erosion is a direct result of unions not properly responding to changes in the post-industrial workplace and workforce. Like the DOL, the NLRB mirrors that ostrich-like obliviousness. 

On the one hand, management at most companies is much better in responding to employee needs and wants than it was 70-80 years ago. That means fewer disgruntled employees and less need for nanny-agencies like the DOL and NLRB. Adding to this reality is that the union movement and its workplace brethren have, for the most part, been unable to “live up” to expectations of workers. Anyone who expected the DOL and NLRB to have noted the changing workplace, workforce and unionization rates and respond appropriately is sorely disappointed. 

Indeed, under the Obama Administration, the NLRB actually strengthened its hold over the workplace through a more expansive reading of workers’ rights as provided under Section 7 of the National Labor Relations Act (NLRA), which permits employees to engage in “protected and concerted” activities. As part of this expansion, the NLRB is now taking some very controversial actions related to employee handbooks and workplace rules — including its recent holdings that an employer has no right to expect its workers to act courteously and with civility. 

For example, in a recent case the NLRB found that handbook provisions that prohibited “negativity and gossip” and required employees to act in a “positive and professional manner” were deemed illegal because they were somehow construed to be “limiting” employees’ rights (to act badly and unprofessional, I assume). In another recent case, a handbook provision that prohibited “discourteous or impolite” behavior was also found to violate employee rights.

The result of all this over-regulation is that employers need to be more careful than before and involve legal counsel to a greater degree when crafting nearly any employee policy or employee handbook, spending money that could be used to grow the business. Does the NLRB really have so little to do these days that it is spending its time and efforts in striking down policies that discourage disruptive employee behavior? And should such disruptive behavior occur, how then would this irrelevant agency deal with it?

Without a doubt, the mid-1930s are long gone. And it’s time that our various government agencies and governing bodies get a grasp on what is needed today to help American businesses thrive instead of crippling them with this sort of nonsense.