9-10-2018; Dysfunction Defined--IL SB 904 Will Create Havoc and More Litigation; Kevin Boyle, JD on Shocking New IN WC Ruling and more

Synopsis: Dysfunction Defined--IL SB 904 Will Create Workers’ Comp Legal Havoc and Lots More Litigation. How About An Alternative??? Thoughts, Comments and Opinions by Gene Keefe, J.D.

Editor’s comment: IL SB 904 is unusual and unprecedented IL WC legislation that may be coming at the IL WC community in about sixty-seventy days during the fall veto session of our legislature. Sponsored by ISMS, the dual goal appears to be getting doctors, hospitals and other caregivers the ability to sue in Circuit Court to collect both unpaid medical bills and statutory interest of 1% per month on unpaid bills. Governor Bruce Rauner provided an amendatory veto that would alter the basic model of having work comp claims decided in two venues and bring all WC claims back to the IWCC.

Please note I always want doctors and hospitals to be paid in a timely fashion and in the accurate amounts when properly coded medical bills are presented to a self-insured employer or insurance carrier. In this day and age, I am sure it is amazingly hard to believe how few doctors and other medical vendors can provide properly coded medical billing. I do feel most hospitals do a much better job of handling, coding and collecting medical bills.

Let’s look at Dysfunction Defined in IL WC.

Starting around 1909 after the Cherry Mine Disaster which left thousands of widows and children, the IL legislature, in its wisdom crafted the first workers’ comp bill in this State’s history. For the most part and with very few exceptions, all workers’ comp issues are adjudicated by a State agency specifically created and exclusively managed for the sole purpose of adjudicating workers’ comp benefits.

Please note if you analyze the tri-partite benefits under all workers’ compensation systems in the history of this planet, we are looking at medical costs and care as the number one WC benefit to injured workers. Lost time replacement benefits and permanency/impairment awards/settlements are usually the next two WC benefits in terms of costs and importance. IL SB 904 would therefore unquestionably split adjudication of the number one WC benefit into two separate venues—the Circuit Courts across the 102 counties of this State and the IL WC Commission which also holds hearings in numerous locations.

Please also remember the adjudication of workers’ comp benefits at the IWCC is tightly controlled at all levels—Petitioner attorneys cannot charge whatever they decide as hourly rates to handle WC claims. Their compensation is generally limited to 20% of whatever benefits might be in dispute.

Under IL SB 904, there are no limits on what attorneys might charge to represent their clients in the Circuit Courts. I am also certain there are court costs and other levies attendant to all Illinois litigation. As you read this, the IWCC does not charge any fees or other levies to reimburse the State for what is spends on hearing officers, court calls, computer tracking/storage and other related costs. Those costs are paid from levies on Illinois employers.

Similarly medical bills presented for care under the IL WC Act are tightly controlled—there is the ever-changing IL WC Medical Fee Schedule that greatly cuts what might otherwise be due or paid under the appropriate CRT medical billing codes. Lots of doctors and others complain about how low some of the WC medical reimbursements have become but the important thing to remember is a WC medical bill is not the same a what you might be charged by a plastic surgeon or other healthcare giver not constrained by IL WC law.

What Do You Mean Attorneys’ Fees Will Be Needed for Lots of Parties in WC Circuit Court Collection Claims?

I don’t believe ISMIS and the others lobbying for SB 904 looked at the whole enchilada, baby. In my humble view, when work comp-related medical bills go unpaid and the medical caregiver wants their dough plus statutory interest, there is going to have to be a judicial finding the claim is “workers’ comp.” Before a Circuit Court judge could make such a determination, they would have to have all relevant parties in front of them to be subject to the Court’s final ruling. The relevant parties would be the

• Party seeking collection—the doctor, hospital or other medical vendor;

• The injured worker;

• The employer for the injured worker and

• The WC insurance carrier or TPA (third party administrator).

Please note the determination a workers’ comp medical bill is due and owing would require the judge to make a binding determination—the matter has to truly be “workers’ compensation.” To make that decision, preliminary issues would include the Court having to make findings as to jurisdiction, employer-employee status, accident arising out of and in the course of employment and causal connection. It is also possible the judge would have to determine the bills are reasonable, necessary and related. The judge would also have to be presented accurately coded bills that comply with the IL WC Medical Fee Schedule.

Please note all of the above decisions might and could be made long before Claimant might later file an Application for Adjustment of Claim at the IWCC. That said, the Circuit Court’s determination would be res judicata or under what is also called “issue preclusion,” the Circuit Court judge’s ruling would be at least a preliminary ruling that would unquestionably impact all other issues in the IL WC claim.

The “binding determination” I mention above might not be simple at all. I think the drafters and supporters of IL WC SB 904 think everyone gets injured in front of five nuns and six rabbis and there are never any questions about compensability. To the contrary, many IL WC claims have obvious issues and concerns and run the gamut from reliable to fraud-laced.

Please also remember starting the IL WC process in Circuit Court opens up a can of litigation worms like discovery, motion practice, appeals and whatever. Our courts aren’t always rapid and smooth—that is why we have courts.

Either way, if SB 904 gets past the Governor’s amendatory veto, a sweeping new sort of litigation will hit our Circuit Courts. Lots of new litigation over WC-related medical bills could be brought shortly after the care is provided and this is going to bring lots of injured workers, their employers and insurance carriers into our Courts. In my view, if a worker is sued by their doctor for an unpaid medical bill, the worker is going to need an attorney at their own expense to avoid getting defaulted or their work injury claim denied without a hearing.

How Do We Fix This Mess? Please look to the IN WC System!!!

Our amazing law partner Kevin Boyle confirms IN WC gives doctors and hospitals a say and, most important, legal standing before their IN WC Board to fight for payment of unpaid medical bills. Claimant is left out of the process.

The important thing to me is the whole issue is resolved rapidly under their WC system and NOT in the Circuit Court.

This IWCB link has all the info, with links to the procedures, rules, too:

https://www.in.gov/wcb/2486.htm

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

Synopsis: Shocking New Indiana Court of Appeals case: No CGL Coverage Owed for Employee’s Electric Shock Injury. Article and analysis by our IN WC Defense Team Leader, Kevin Boyle, J.D.

Editor’s comment: The Indiana Court of Appeals just issued an interesting Memorandum Decision relevant to worker’s compensation claims in Smith v. Progressive Southeastern Insurance Co., Case No. 18A-PL-340, published 08/31/2018.

Smith worked for Skelton’s tree-trimming business for many years. Skelton provided all tools and work apparel for about $10/hr in cash. He periodically worked 30 hours/week with no overtime, no income taxes were withheld, and no 1099 was ever completed.

Smith cut down a tree by himself that struck an electric wire on a nearby utility pole, knocking the wire to the ground. Smith called Skelton about it, and Skelton drove to the scene with his bucket truck and 65-foot boom. Both men got into the bucket of the truck to fix the situation, Smith grabbed the wire, and ZAP: he sustained serious injuries and was in hospitals for a couple months.

Skelton’s CGL carrier filed a declaratory judgment to determine whether it owed coverage for Smith’s accident. The CGL policy excluded coverage for any worker’s compensation claims, injuries to employees arising out of and in the course of employment, with certain Auto and other  exclusions potentially relevant to the incident.

The trial court granted summary judgment for the carrier that no coverage was owed for Smith’s accident, and the Court of Appeals affirmed. The Court of Appeals held that Smith was employed by Skelton and that there was a causal nexus between his employment and his activities when injured. Smith wasn’t in the bucket or trying to fix the broken wire for person reasons. His injuries were born out of a risk incidental to the employment, and they occurred in the course of that employment. Broken wires tend to occur during this type of work and Skelton had previously broken wires before, too. The policy language that excluded coverage for employees and for obligations arising under the workers’ compensation law were both applicable here.

Also, the Auto coverage exclusion applied because the bucket truck qualified as an “auto” and the truck’s use was the cause of Smith’s injuries. Finally, the policy was not void as against public policy, too. It did not provide illusory coverage.

If you’d like a copy of the opinion, please email me: kboyle@keefe-law.com. Please be aware that technically, pursuant to Indiana Appellate Rule 65(D), this Memorandum Decision should not yet be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

9-3-2018; Busy Week in IL WC; SB 904 Amended by Gov Rauner--Will It Stick?; Governor Rauner Reappoints 11 Arbitrators; One Law Adds CE Req'ment for Opioid Prescribers and Medical Marijuana OK'd

Synopsis: Governor Rauner Amends/Nixes ISMIS Effort To Move IL WC Medical Bill Litigation to IL Circuit Courts.

Editor’s comment: Under the guise of “access to medical care” the Illinois State Medical Society or ISMIS is fighting to have some WC issues adjudicated at the IWCC and WC-related medical bills adjudicated in the Circuit Courts—what a mess. Please note if this legislation becomes law, the entire IL WC system is certain to go topsy-turvy—this will be a seminal change for risk managers, attorneys on both sides, doctors, hospitals, claims handlers. EVERYONE!!!

There do seem to be hard feelings about this legislation—I am unsure why. In my view, ISMIS and others should focus on getting faster, effective and more streamlined adjudication in the IL WC system we already have. Splitting the process is certain to be dysfunctional, as outlined below.

I received the following from Jay Dee Shattuck who is with the Illinois State Chamber. This is unedited by me but if you want the attachment mentioned, I will send it one at a time. I agree strongly with Jay and hope his effort to avoid double-trouble in handling medical bill payments in separate venues is successful.

A quick search of other states found no jurisdiction with a comp statute that authorizes or creates a comparable cause of action of allowing a medical provider to bring suit for payment of a comp claim in a court of primary jurisdiction against an employer/insurer.  

There is a provision in California law allowing a medical provider to seek a lien on an employer over disputed medical in a comp case, which serves to effectively create collateral litigation with the provider and employer as primary parties in interest. As of August 2016, California was the only state with such a provision. Hawaii had some legislation pending that has not been enacted.

A primary (and important) distinction between the provision of SB 904 and the California law is that the California lien claims are litigated and adjudicated before the California Workers’ Compensation Appeals Board and not in a court of general jurisdiction as proposed in SB 904. My understanding of the California process is more like allowing medical providers to seek something like a DJ (or declaratory judgment) from the Commission on the merits and validity of the claim and the necessity/extent/value of the services provided to the petitioner. Even with the substantially less burdensome approach than what’s provided in SB 904, the California lien process has been costly and has produced undesirable results, including a huge volume of lien claim litigation, the filing of a large volume of frivolous liens, and a cottage industry of pursuing claims on assigned rights on liens. 

Approximately 35% of the WCAB docket is comprised of these lien claims and employers/insurers spend about $200 million per year in loss adjustment alone. Another issue is that of assignment of rights on the liens. The 2016 brief describes the multitude of problems these liens have caused and an uptick in fraudulent practices being perpetrated by assignees of liens that the brief attributes to flaws in the system. Firms securitizing, packaging, and ultimately trolling on potential proceeds of medical comp claim lawsuits shouldn’t sit well with anyone. 

SB 904's new cause of action may also create a new industry of firms buying rights to medical, especially on questionable cases, and trolling for nuisance settlements or worse. This is effectively what the California lien system has caused, and these are just administrative adjudications, not claims in a court of general jurisdiction. 68 businesses comprising the top one percent of lien filers filed more than 273,000 liens totaling $2.5 billion in accounts receivable on adjudicated cases between 2013 and 2015. Two of the business owners are indicted and three others have pled guilty. (https://www.prnewswire.com/news-releases/600-million-in-workers-compensation-liens-filed-by-convicted-or-indicted-physicians-providers-300316091.html)

The proponents of this legislation mislead legislators by claiming their intent is that the change to allow pursuit of circuit action is only for "authorized" care. Two problems...first, the provision in SB 904 does not limit the action to such cases. If SB 904 were enacted, the law would read:

(3) In the case (i) of nonpayment to a provider within 30 days of receipt of the bill which contained substantially all of the required data elements necessary to adjudicate the bill, (ii) of nonpayment to a provider of a portion of such a bill, or (iii) where the provider has not been issued an explanation of benefits for a bill, the bill, or portion of the bill up to the lesser of the actual charge or the payment level set by the Commission in the fee schedule established in this Section, shall incur interest at a rate of 1% per month payable by the employer to the provider. Any required interest payments shall be made by the employer or its insurer to the provider not later than 30 days after payment of the bill. 

(4) If the employer or its insurer fails to pay interest required pursuant to this subsection (d), the provider may bring an action in circuit court to enforce the provisions of this subsection (d) against the employer or its insurer responsible for insuring the employer's liability pursuant to item (3) of subsection (a) of Section 4. Interest under this subsection (d) is only payable to the provider. An employee is not responsible for the payment of interest under this Section. The right to interest under this subsection (d) shall not delay, diminish, restrict, or alter in any way the benefits to which the employee or his or her dependents are entitled under this Act.

Do you see anything that limits this section to a bill that is "authorized??? The Gov's AV (amendatory veto) limits the 1% per month interest to "undisputed" bills.

Second, as you know, it is not uncommon for care to be "authorized" but problems arise with the bill charges and a dispute occurs. Miscoding, unbundling, services that do meet the UR standards of care, etc. If medical providers have the power to pursue unpaid bills for all authorized care two results are likely: care authorization will not be offered until all services are agreed upon delaying care for injured workers; or, medical billing abuses will explode.

Another change of concern in SB 904 is the provision being added to Section 8.2a Electronic claims. The Department of Insurance is to establish rules that:

" Ensure that health care providers are responsible for supplying only those medical records pertaining to the provider's own claims that are minimally necessary under the federal Health Insurance Portability and Accountability Act of 1996."

My fear is that providers will severely limit what records are available to an employer to determine causation and compensability.

The IL Medical Society has refused to negotiate any of the SB 904 provisions. There are solutions to resolve what they say are their issues without potentially creating significant problems for employers.

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

Synopsis: Governor Rauner Reappoints 11 Sitting Arbitrators.

Editor’s comment: Other than to again confirm we still have too many Arbitrators in this State, as IL WC claims continue to drop, I have no problem with the re-appointment of these great hearing officers.

1. Jessica Hegarty, an IL WC Arbitrator since 2014. She was with a very successful and connected personal injury law firm but demonstrates great perspective in pre-trials and trials.
2. Jeffrey Huebsch, first appointed as an IL WC Arbitrator in 2013. He previously was a defense lawyer who has become a moderate and fair hearing officer.
3. Nancy Lindsay, an IL WC Arbitrator since 2011. Nancy was an IL workers' compensation Commissioner from 2006 to 2011.
4. Christine Marie Ory, appointed as an IL WC Arbitrator in 2015. She was with an insurance carrier, Ralph Gabric’s office and her own shop before moving into the Commission spot.
5. Maureen Pulia, a strong hearing officer since 2003. Maureen is brutally fair and sharp in relation to legal and factual determinations.
6. Melinda Rowe-Sullivan, an IL WC Arbitrator since 2015. I have not appeared before her yet but look forward to a pretrial or trial when the time comes.
7. Douglas Steffenson, appointed by Governor Rauner in 2015. We feel Doug is reasonable, fair and professional.
8. Maria Bocanegra, who has been an IL WC Arbitrator since 2014. She is reasonable, fair and professional. She may be one of the more liberal, pro-union Arbitrators in this State.
9. Paul Cellini, an IL WC Arbitrator since 2015. Paul has settled into the position and does solid work.
10. Stephen Friedman, an IL WC Arbitrator since 2014. Arb. Friedman is a former competitor of mine and one of the most knowledgeable WC lawyers in this State.
11. Gerald Granada has worked as an Arbitrator since 2011. Gerry practiced law before the IWCC on both sides of the matrix and is a friendly and hard-working hearing officer.

Synopsis: New IL Law Strengthens Effort to Fight Opioids By Adding Continuing Education Requirement. Another Law Legalizes Medical Marijuana for WC Claimants In Lieu of Opioids.

Editor’s comment: The new law requires continuing education for prescribers on safe dispensing. It is hoped this is going to block over-prescription of these killer drugs in the IL Work Comp arena.

Last week, Gov. Bruce Rauner took another step to strengthen the State's effort to combat the opioid crisis by requiring medical professionals to take 3 hours of existing continuing education on how to safely prescribe opioid medications. The education requirement became law when he signed Senate Bill 2777 amending the Illinois Controlled Substance Act. "We're fighting this opioid crisis every day," Rauner said. "It's impacted too many families here in Illinois. We've given people who struggle with substance use more opportunities to get the help they need. We've started a 24-hour Helpline where they can get connected to treatment options. There's a standing order for using opioid reversing Naloxone. We've boosted reporting requirements to our Prescription Monitoring Program to halt ‘doctor-shopping.'"
 
"Now, we want to make sure our doctors see potential signs of abuse and are cautious when prescribing opioid medications to those who need them, cutting back on the potential for addiction," he continued.
 
The legislation was championed by the Illinois Department of Financial and Professional Regulation (IDFPR). Impacted professions that hold a separate controlled substance license include: Physicians, Podiatric Physicians, Advanced Practice Registered Nurses, Physician Assistants, Dentists, Clinical Psychologists, Optometrists, and Veterinarians.
  
An estimated 11 million Americans have misused opioids in the past year, approximately 1.9 million Americans are addicted to opioids, and 4 out of 5 heroin users started out on prescription opioids
 
On a related front, Illinois injured workers will qualify for medical marijuana in lieu of opioids. Republican Gov. Rauner also signed Senate Bill 336, which expands the state’s medical marijuana access. Known as the Alternatives to Opioids Act of 2018, it establishes a pilot program under which physicians may prescribe marijuana for patients who are taking opioids or who have a condition for which opioids could be prescribed. 

The bill did not exclude workers’ compensation patients from the program, as other states have done.

Please remember marijuana remains illegal on the federal level.

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.