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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