The National Labor Relations Board (“Board”) has adopted new standards regarding facially neutral workplace rules and the joint employer standard that employers should welcome with open arms.
New Standard to Determine Lawfulness of Facially Neutral Workplace Rules:
The Board has established a new test to evaluate the lawfulness of an employer’s facially neutral workplace policies and rules and whether those rules have a chilling effect on employees’ protected concerted activity. The Board overruled its 2004 Lutheran Heritage-Livonia decision which held employers violated Section 7 of the National Labor Relations Act (NLRA) by having handbook rules and policies that could “reasonably be construed” by an employee to “chill” protected activity under the NLRA. The Lutheran Heritage-Livonia standard has long frustrated employers because the vague standard made it difficult for them to accurately predict whether a policy or rule would pass NLRB muster. Many seemingly benign company policies were struck down as unlawful under this old standard.
Under the new standard in Boeing, the Board will assess facially neutral handbook rules and policies by balancing the extent and nature of the potential impact on NLRA-protected rights against the legitimate justifications put forth by the employer for maintaining the policy or rule.
The Board will classify rules into three categories under the Boeing standard. The first category of workplace rules are those that are always considered lawful. These are rules that when reasonably interpreted do not interfere or prohibit the exercise of NLRA rights, or alternatively, their potential adverse impact on NLRA rights is outweighed by the employer’s justifications for the rule. Rules falling under the second category are sometimes lawful, depending on the circumstances in which the rule is applied. Finally, the third category of workplace rules are unlawful regardless of the specific circumstances since these rules infringe on workers’ protected rights.
The key takeaway for employers is that the Board has explicitly overruled all cases regarding “harmonious interactions and relationships” or “basic standards of civility.” Additionally, other policies included in the handbook, such as protecting the company’s reputation, social media, and restrictions on employee use of cameras, may be retained by the employer with more confidence, so long as they are supported by a legitimate business justification.
Perhaps it’s time to conduct a comprehensive review of your workplace policies and rules to ensure your specific organizational needs are met and comply with legal requirements. To learn more about compliance audits contact rita@pmphr.com
Article Prepared By:
Keith Frank, Partner, Labor & Employment Law Attorney
