NLRB Flips Rule on Employment Policies
- In a string of significant decisions, the National Labor Relations Board (NLRB) has indicated a willingness to depart from Obama-era policies and move away from regulating nonunion employers.
- The NLRB, in The Boeing Company, retreated from its decision in Lutheran Heritage, which established the standard as to whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA).
- The NLRB's new framework allows consideration of the employer's business justification for enacting the workplace rule, rather than finding as a matter of course that the rule constitutes a violation of federal law.
In a string of significant decisions, the National Labor Relations Board (NLRB) has indicated a willingness to depart from Obama-era policies and move away from regulating nonunion employers. Most recently, in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the NLRB retreated from its decision in Lutheran Heritage, 343 NLRB 646 (2004), which established the standard as to whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA). In The Boeing Company, the NLRB set forth a standard that considers not only the potential impact on employee's rights under the NLRA but would also weigh that potential impact against the employer's legitimate business justifications for the rule in question.
Application of the Lutheran Heritage Standard
In Lutheran Heritage, the Board held that workplace rules violate the NLRA if they 1) would be reasonably construed by employees to prohibit NLRA-protected activity, 2) were promulgated in response to union activity, or 3) had been applied in the past to restrict the exercise of NLRA rights.
During the Obama Administration, the NLRB issued several decisions under the Lutheran Heritage standard addressing employer policies pertaining to issues such as social media, confidentiality, insubordination and investigations, even when such policies were used for a proper purpose. The Obama-era Board relied heavily on the "reasonably construed" criteria to justify regulation of otherwise proper workplace policies that the Board felt could potentially infringe on employee rights even if those policies had never been enforced or threatened to be enforced in such a manner. For example, employer rules suggesting that employees foster "harmonious interactions and relationships" or conduct themselves in a "positive and professional manner," were found to violate federal law. See 2 Sisters Food Group, Inc., 357 NLRB 1816, 1817 (2011); Hills and Dales General Hospital, 360 NLRB 611, 612 (2014). Nonunionized employers suddenly found themselves, their employment actions, and their policies regulated by the NLRB to an extent never seen before.
Moving Away from the Lutheran Heritage Standard
The Boeing Company involved a "no camera rule" that prohibited employees from using cellphones or other devices to photograph or take video on company premises. Under the expanded interpretation of Lutheran Heritage, this work rule would likely be invalid because it could be enforced to prevent employees from engaging in protected, concerted activity. Specifically, such a rule could be interpreted to prevent employees from documenting efforts to organize and any attempts by the employer to thwart such efforts. Such a rule might also prohibit employees from documenting workplace issues or violations.
Instead of making such a finding, the NLRB in The Boeing Company held that it would now consider 1) the nature and extent of the rules potential impact on employees' NLRA rights, and 2) the employer's legitimate justifications for the rule. In what is turning out to be a common theme with the current NLRB, one of the key justifications for the new standard is stability in industrial relations. In particular, the NLRB in The Boeing Company noted that its standard would eliminate the tremendous uncertainty created by the Obama Board's application of Lutheran Heritage.
Applying the new standard to the facts at hand, the NLRB reasoned that The Boeing Company's "no camera" in the workplace rule potentially affected the exercise of NLRA rights, but that the possible impact was comparatively slight and outweighed by important and legitimate business justifications, including national security concerns.
Going Forward Under The Boeing Company Standard
The NLRB's new framework allows consideration of the employer's business justification for enacting the workplace rule, rather than finding as a matter of course that the rule constitutes a violation of federal law. Employers should take comfort that they no longer have to draft rules with a nearly impossible level of finesse to meet the expanded Lutheran Heritage standard. Employers may wish to consider revising their workplace rules and policies to add a brief explanation of the business justification for the rule if that justification is not apparent.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.