You remember hearing in the last several years that the NLRB was striking down many policies in Employee Handbooks that were cornerstone employment practices? (If you don’t, read my previous posts about it here, here and here.) In my last post, I talked about the NLRB’s new-old joint employment test. You can find that here if you missed it. This week, let’s look at what the NLRB said last month about its past decisions, that have left many employers confused as to what to do with their Employee Handbooks — and frustrated. Read on…
(image from wurkplace.co.uk)
Before we talk about the case, let’s review the NLRB’s previous position. Prior to December 2017, the NLRB would deem unlawful (and strike down) any policy or handbook provision that an employee could reasonably construe as prohibiting activity protected under the NLRA (Section 7 to be exact). Just so we have everything we need in front of us, let’s review Section 7. Here’s what it says:
Employees shall have 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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title]. (Emphasis added).
The NLRB has interpreted engaging in “other concerted activities” and “other mutual aid or protection” to include employees discussing work conditions, wages and even, under some circumstances, making derogatory comments about their bosses or the company. In other words, it doesn’t have to be specifically union-related activity.
The NLRB handed down this new decision involving The Boeing Company on Thursday December 14, 2017, which overturned Lutheran Heritage Village-Livonia, a 2004 precedent. The current Board found the previous standard too difficult to apply and that it caused conflicting decisions and unpredictability. (Well, who woulda thought??) That’s not all though. The Board also pointed out that previous decisions “disregarded entirely the overwhelming number of employees and others whose interests are protected by rules that the Board has invalidated….” (That sounds an awful lot like common sense.) and even said that prior standard “required perfection that literally is the enemy of the good.” (To be honest, I’m not sure I really know what that part means, but I think they’re trying to say that the old test is silly or something like that.)
OK, enough about the old rule. It’s a new year and we’ve got a new rule to learn. So what is the new rule? Without further ado, here it is: “The (b)oard will evaluate two things: (i) the nature and extent of the potential impact on NLRA (National Labor Relations Act) rights, and (ii) legitimate justifications associated with the rule,” . It then broke down rules and policies into the following 3 categories:
First category: “[R]ules that the (b)oard designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.” Employers, you might like this example the Board provided: rules requiring employees to adhere to basic standards of civility. Yep. Those are lawful.
Second category: “[R]ules that warrant individualized scrutiny in each case as to whether the rule, when reasonably interpreted, would prohibit or interfere with the exercise of NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.” This makes sense. Some rules would be lawful in some circumstances but not others.
Third category: “[R]ules that the (b)oard will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.” The Board said that forbidding employees to discuss their wages would fall into this category. In other words, this category would generally include rules that on their face are probably unlawful.
That’s not all. In addition to this decision, the NLRB’s General Counsel issued a memorandum, in which he said the Board would provide “alternative analysis” of prior decisions relating to Employee Handbooks, with particular focus on rules prohibiting disrespectful conduct and use of employer trademarks and logos, no camera/recording rules, and rules requiring employees to maintain the confidentiality of workplace investigations.
The stated aim of this new ruling is to “strike a proper balance between employees’ rights and employers’ business justifications for the rule” and provide employers more clarity with respect to drafting policies and rules. Will it actually do that? As they say, time will tell.
Happy 2018! Come back next week for more on the latest NLRB decisions.
You may not escape joint employment liability under this new-old standard, but you should have a bit more clarity from it than you did from the Browning-Ferris standard.
Well, that’s all I’ve got for now. Happy Holidays to all of you, whether you just finished celebrating one, or you are about to do so! See you next week.
Good news! If you missed the live presentation, you can now get the recording of my webinar “Navigating the Employee Leave Overlap: FMLA, ADA and Workers’ Comp)”.
(Click on the title above for more info.)
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.