With new members in place, the National Labor Relations Board (NLRB) has been busy reviewing policy. Three of the five members of the NLRB are from the current president’s political party, continuing a trend that has existed in previous presidential terms. The current board’s review of policy seems to be leaning towards a management-friendly approach, being more favorable to employers. In this issue of Astronology®, we will focus on a decision made by the NLRB in 2017 regarding employee handbooks, and its continued clarification in 2018.
Swinging into 2018 from the end of 2017, The Boeing Co., 365 NLRB No. 154 (2017) ruling established new criteria for evaluating the lawfulness of employer rules, policies, and handbooks. While Section 7 of the National Labor Relations Act (NLRA) secures an employee’s right to engage in protected concerted activity, there have been many NLRB cases over the years that have helped to shape this rule. A noted case in 2004, Martin Luther Mem’l Home, Inc. dba Lutheran Heritage Village Livonia, established a standard that even if an employer rule does not explicitly restrict activities protected under Section 7, it could still violate the NLRA if one of the following can be shown:
- The rule could possibly be ‘reasonably construed’ by employees to restrict Section 7 activity;
- The rule was adopted in response to employees’ participating activity; or
- The rule has been used to restrict Section 7 activity.
The Boeing ruling introduced an expanded structure. “Though well intentioned, the Luther Heritage standard prevents the board from giving meaningful consideration to the real-world ‘complexities’ associated with many employment policies, work rules and handbook provisions,” the majority of the board expressed. The majority also suggested that the Lutheran Standard “produced rampant confusion for employers, employees and unions.” In its place, the NLRB announced a three category standard to categorize employer rules:
- Category 1 are “rules that the Board 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.”
- Category 2 are “rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
- Category 3 are “rules that the Board 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.”
An in-depth discussion article on Littler’s website explains the new standards’ impact. “By balancing considerations favoring maintenance of rules, the new standard will expand the scope and type of rules the Board will find lawful, and improve employers’ ability to tailor rules to suit their and employees’ needs.” Specifically, the article highlights that the criteria for Categories 1 and 3 “will simplify and assist employers in determining what rules are in-bounds or out-of-bounds, without the constant risk of enforcement litigation.”
On June 6th, 2018, additional guidance was given to help employers navigate the new three category approach. General Counsel Peter B. Robb issued a memorandum (“GC 18-04”). This memo lists examples of what rules fall under Category 1 as well as “possible examples” of rules that fall under Category 2, resulting in individualized examination. The memo also describes what type of rules would be considered unlawful under Category 3.
As 2018 continues, we will see if the new adjustment in how employer rules are evaluated will be helpful in keeping a balance between employer and employee rights. Have an opinion on this topic? Please share in the comment box below!