In December, there was more good news for employers who were hoping that regulators would take a more centrist approach to labor and employment policy. There was another rollback of an Obama era regulatory interpretation at an agency that had been very activist in the last few years. In early December, the National Labor Relations Boards (NLRB), with new Trump appointees, changed an important interpretation regarding Employee Handbook rules, and how to determine if they violate federal law. NLRB decisions impact all employers, even those without unionized employees or collective bargaining agreements. Under Obama’s NLRB, the agency took an activist approach to the National Labor Relations Act and brought a series of complaints against employers because facially neutral employment policies were alleged to have unlawfully interfered with the exercise of rights protected by the National Labor Relations Act. For instance, a workplace civility standard could violate legal protections because it might interfere with an employee’s right to disagree or voice displeasure with a company policy.
Under the NLRB’s new standard announced in the Boeing Company decision, when evaluating a facially neutral policy, work rule or handbook provision that could reasonably interfere with the exercise of NLRA rights, the Board will look at two things: (1) the nature and extent of the potential impact on NRLA rights, and (2) the legitimate justifications associated with the rule.
How can your company evaluate the legality of its handbook and workplace policies under this standard? The Board describes three categories of rules. First, category 1 rules are lawful to maintain because they do not interfere with NLRA rights or the potential impact on protected rights is outweighed by the rule justification. Two examples at Boeing are the “no cameras” rule and basic standards for civility. A rule that requires employees to foster harmonious interactions and relationships (or civility) was legally permissible. The Obama NLRB had ruled that civility standards were illegal.
Category 2 includes rules that require individual scrutiny to determine on a case by case basis as to whether the neutral rule interferes with NLRA rights, and whether the adverse impact on NLRA protected conduct is outweighed by legitimate justifications.
Category 3 rules are unlawful to maintain because they prohibit NLRA protected conduct and the adverse impact on NLRA rights is not outweighed by business justifications associated with the rule. For example, employees cannot be prohibited from discussing wages and benefits with other employees.
So, the best guidance to employers is to review each proposed workrule, determine if the rule may interfere with NLRA Section 7 rights, and if so, the extent of the overlap. Each work rule and policy must also have a solid business justification.
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