During the past year, National Labor Relations Board (NLRB) decisions have flip-flopped under the pro-employer Trump administration, with the appointment of two new members tipping the scales toward a conservative majority. Even Supreme Court decisions, such as the recent arbitration ruling, have unraveled a number of Obama-era employee protections. This is not something new; even under Obama, the NLRB experienced changes to precedent set by the previous administration. Based on the current uncertainty, what is an employer supposed to do win the midst of this labor law instability?
For those employers questioning the erratic changes, we can only offer a few possibilities. For example, the Trump administration has been traditionally pro-employer and, therefore, has helped shape the NLRB by appointing two like-minded members. This full National Labor Relations Board has a Republican majority, where their General Counsel has admitted that Obama-era decisions had changed established law.
Ambiguities in handbook rules and policies are no longer automatically interpreted against the employer. Rules considered “facially neutral,” are not necessarily prohibited. The previous standard, set by the Lutheran Heritage Village-Livonia decision, favored the employee’s inability to exercise their Section 7 rights under the policy, regardless of the employer’s need to maintain discipline and productivity in the workplace. As a reminder the National Labor Relations Act’s Section 7 grants employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." For example, social media policies that appeared neutral with regards to section 7 rights were interpreted as infringing upon the employee’s rights to speak out the conditions of the workplace or benefits. Any forbidden activity in such policies must be specifically listed.
The NLRB reassessed its standard in the Boeing decision, which allowed employers to make broader policies relating to confidentiality, criticism in the workplace, and insubordination, for example.
Remember when employers had to give an inclusive set of banned activity? No longer.
While the Boeing decision has not changed certain aspects of the previous NLRB ruling, such as balancing tests of non-distribution, non-solicitation, and non-access rules, “special circumstances” tests of apparel rules, and prohibitions against rules specifically banning protected-concerted activity, it did clarify a number of points by creating 3 new categories for employer rules:
Category 1: Rules that are “generally lawful to maintain”
First the NLRB created Category 1 rules or those “that are generally lawful to maintain.” These rules, usually found in employee handbooks or policies, when interpreted, do not prohibit or interfere with protected rights. Alternatively, they are defensible because their impact on protected rights is generally outweighed by business justification.
Examples of these rules include:
NLRB justified the items in Category 1 by stating the rules were for the protection of employees and their respective workplaces. In the cases of no-photography or recording rules, NLRB stated the mandate actually encouraged openness among members of the workplace. For example, if employers stated that conversations could not be recorded, the NLRB believed casual conversations would be more frank and without fear of reprisal. While there was some risk of a Section 7 protected action being disallowed, NLRB stated that so long as these rules did not specifically ban those actions, the balance test was met. Along the same lines, anti-disloyalty, nepotism, and self-enrichment rules were permitted with the goal of promoting harmony.
Additional rules concerning confidential, proprietary, or customer information also belong in Category 1 — so long as they do not prohibit conversations regarding employee or wage information. This position isn’t a large deviation from Lutheran Heritage — where a broad ban was allowed, so long as discussions about the terms and conditions of employment weren’t prohibited. The improper use of employer logos or trademarks was also upheld under the same justification.
Similarly, employer policies prohibiting defamation or misrepresentation of the company (or its services, employees, and products) were allowed. The NLRB voiced that this speech was unprotected even when concerted because it was intentionally false or disparaging.
Category 2: Rules warranting individualized scrutiny
Rules under Category 2 require a case-by-case evaluation to determine whether the rule would interfere with Section 7 rights and, if so, would the adverse impact be outweighed by legitimate justifications. Here NLRB focuses on the contextual interpretation of employees in their daily jobs: what may be allowable in some workplaces may be prohibited in another industry. While these rules may not be facially neutral, the balancing test is how an employer can accommodate both its business needs and the protected rights of the employee.
Category 3: Rules that are unlawful to maintain
These rules are judged unlawful by NLRB because they would limit or prohibit employee conduct protected under the National Labor Relations Act (NLRA). No business justification would outweigh the adverse impact on the violated rights. For example, rules prohibiting employees from disclosing their wages or other conditions of work are unlawful. Similarly, a rule disallowing employees from joining an “outside organization” or voting on matters concerning the employer are prohibited. In both of these cases, the Board argued these rules would have a “chilling” (e.g. deterring) effect on union activity.
If there is one message for employers it’s this: review your employee handbook. New perspectives may allow you to revamp your handbook policies. If you updated them within the last few years, they likely contain the language under the Obama-administration that inferred a negative impact on facially neutral policies. However, if you didn’t update your handbook, you may not need to make changes related to protected concerted activity.
Marybeth offers pragmatic solutions to employers on complex compliance and risk issues. She provides guidance to employers in a variety of industries, focusing on compliance, risk management and business planning. She has extensive experience in health, insurance, and Indian law.
Marybeth offers pragmatic solutions to employers on complex compliance and risk issues. She provides guidance to employers in a variety of industries, focusing on compliance, risk management and business planning. She has extensive experience in health, insurance, and Indian law. Prior to joining Associated Benefits and Risk Consulting in 2018, she was in-house counsel for various Metro-Milwaukee companies. She is a frequently requested speaker at health law conferences and a fervent mental health advocate.
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