Changing Winds Bring More Employer-Friendly Policies


The National Labor Relations Board (NLRB) recently adopted a new standard for evaluating workplace rules, policies and employee handbooks. In The Boeing Company, 365 N.L.R.B. 154 (Dec. 14, 2017), the NLRB was asked to review a policy in the Boeing employee handbook that restricted the use of camera-enabled cell phones on its property.

The policy had been struck down by the administrative law judge under the controversial standard set forth by the NLRB in the Lutheran Heritage Village-Livonia case, under which a workplace policy could be found to violate the Section 7 of the National Labor Relations Act (NLRA) if (1) employees would reasonably construe the policy language to prohibit protected concerted activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict protected concerted activity.

That standard had been used by the NLRB to strike down employer policies, even in non-unionized settings, in numerous areas, including confidentiality, social media, use of cameras in the workplace and policies prohibiting or restricting criticism of management (workplace civility policies). The new Republican-majority NLRB recently overturned the Lutheran Heritage decision and created a new system for classifying employers rules and determining if they violate the NLRA. Under the new system, when reviewing a facially neutral policy, rule or handbook provision, the NLRB will consider (1) the nature and extent of the potential impact on the exercise of protected concerted activity; and (2) legitimate justifications associated with the rule. When those two factors are considered, rules will fall into one of three categories:

  1. Rules That Are Always Legal To Maintain: These Rules either cannot be reasonably interpreted to interfere with an employee's NLRA rights or the potential impact on protected rights is outweighed by the employer's business interests/justifications associated with the rule. Examples of these are "no camera" requirements or rules requiring employees to abide by basic standards of civility.
  2. Rules That May Be Legal To Maintain But Require Individualized Scrutiny: These rules could prohibit or interfere with NLRA rights and require an individualized scrutiny to see if the adverse impact is outweighed by the business justification associated with the rule. Examples of these are confidentiality policies.
  3. Rules That Are Always Illegal: These Rules would prohibit protected concerted activity and the business justification for the rule does not outweigh the adverse impact on NLRA-protected conduct. Examples are rules that prohibit employees from discussing wages and benefits with each other.

Comment: The beginning of the year is always a great time to review your organization's employee handbook and policies to make sure that they are keeping pace with the changing employment laws. This decision from the NLRB provides added motivation to employers as it may permit employers to better protect confidentiality, and have stronger rules on workplace civility without running afoul of the NLRA. Of course, it is always recommended that you have your employee handbook reviewed by employment law counsel to make sure that it is compliant not only with the NLRA, but the other myriad of federal, state and local laws. 

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