nlrb’ s new standard for workPlaCe rules labor & Employment law Section Chairs: Cynthia Sass- Law Offices of Cynthia Sass & Jason Pill- Phelps Dunbar LLP
For the last 13 years, employees have enjoyed broad protection from work rules that have interfered with their ability to engage in concerted activity under section 7 of the National Labor Relations Act. 1 Section 7 is intended to prevent private-sector employers engaged in commerce from interfering with an employee’ s right to engage in concerted activity for purposes of collective bargaining or other mutual aid or protection. 2 Examples of concerted activity include forming a union, circulating petitions, talking with one or more co-workers about working conditions, or participating with one or more co-workers in a concerted refusal to work under certain conditions.
Under Lutheran Heritage Village- Livonia, decided more than a decade ago, the test to determine whether a facially neutral work rule interfered with Section 7 rights required an inquiry as to whether:“( 1) employees would reasonably construe the language to prohibit Section 7 activity;( 2) the rule was promulgated in response to union activity; or( 3) the rule has been applied to restrict the exercise of Section 7 rights.” 3
For more than a decade, the Board broadly interpreted what an employee might reasonably construe as prohibiting Section 7
activity. For example, the Board invalidated a rule prohibiting conduct that“ impedes harmonious interactions and
© Can Stock Photo / zerbor relationships,” and another that threatened employee discipline for“ inappropriate” social media discussions about the company. 4
But the recent Republican shift in the Board’ s makeup helped it to overrule Lutheran Heritage, with the decision in The Boeing Company. 5 Under the new standard, when evaluating a facially neutral work rule, the Board will look at two things:( 1) the nature and extent of the potential impact on NLRA rights, and( 2) legitimate justifications with the rule. As the Board explained, application of this new standard will result in work rules falling into one of three categories: Category 1: Rules that are always lawful because they do not interfere with the exercise of NLRA rights, or because“ the potential adverse impact on protected rights is outweighed by justifications associated with the rule”; Category 2: Rules that“ warrant individualized scrutiny” to determine whether they would unjustifiably interfere with NLRA rights; and Category 3: Rules that are always unlawful to maintain, such as a rule prohibiting employees from discussing compensation with each other.
As to Category 1 rules, the Board was careful to note that
with the board’ s new ruling, employers may now go back and re-write handbooks and work rules that previously were unlawful. while the mere maintenance of these rules is always lawful, application of the rules may violate the Act. The NLRB declined to provide an example of a rule that falls into Category 2.
Consistent with Board precedent, the new Boeing Company test will be applied retroactively to all pending cases. Moving forward, the Board’ s categorization of rules will help shed light on its interpretation of the NLRA. With the Board’ s new ruling, employers may now go back and re-write handbooks and work rules that previously were unlawful. What do these changes mean for employees? Employees will have to show evidence of unlawful application of work rules that chill employees’ rights to engage in Section 7 activity.
1
29 U. S. C. § 157.
2
Id.
3
Lutheran Heritage Village – Livonia, 343 NLRB 646, 647( 2004)
4
See William Beaumont Hospital,
363 NLRB 162( 2016); Triple Play Sports Bar & Grille, 361 NLRB 308( 2014).
5
The Boeing Company, 365 NLRB No. 154( 2017).
Author: Joshua R. Kersey- Sass Law Firm
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