Continuing to swing to more employer friendly decisions, the National Labor Relations Board reversed its rulings of just a few short years ago on workplace policies.
Previously, the NLRB issued its Lutheran Heritage ruling, creating broad brush standards for determining whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfered with an employee’s exercise of rights protected by the National Labor Relations Act. Using this test, the NLRB determined that employers violated the NLRA when workplace rules could be reasonably interpreted to prohibit protected activities. Employers scrambled to revise their policies to ensure not only that they were facially neutral but that they also could not be reasonably interpreted to interfere with employees’ workplace rights.
Under the NLRB’s new ruling, established in The Boeing Co. and Society of Professional Engineering Employees in Aerospace IFPTE Local 2001, the Board will evaluate these same facially neutral policies, rules or handbook provisions that may potentially interfere with the exercise of NLRA rights, by looking two things: 1) the nature and extent of the potential impact on the NLRA rights, and 2) The legitimate justification associated with the rule.
In addition to this new rule, the Board has also announced that it will create categories of rules to provide greater clarity and certainty to employers, employees, and unions. Generally, rules will fall under one of the following three categories:
Category 1. Rules designated as lawful either because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights, or any potential adverse impact on such rights is outweighed by reasoning associated with the implementation of the rule.
Category 2. Rules looked at with individualized scrutiny as to whether it would prohibit or interfere with NLRA rights, and, if so, whether any potential adverse impact is outweighed by reasoning associated with the implementation of the rule.
Category 3. Rules designated as unlawful because they would prohibit or limit NLRA rights and any adverse impact on such is not outweighed by reasoning associated with the implementation of the rule.
With the new changes in place, the pendulum made a considerable swing from an employee-friendly to and employer-friendly standard. Both in the future, and amending previously decided policies under the Lutheran Heritage standard, employers may now balance any potential impact on worker’s rights with their legitimate justification for employing the workplace policies.
