The newly constructed National Labor Relations Board (NLRB) has just given employers a lavish holiday gift by establishing a new and more lenient standard of review for employee handbooks and policy manuals.
Since 2004, the NLRB has invalidated facially-neutral workplace rules, policies, and employee handbook provisions if “employees would reasonably construe the language [of the policy] to prohibit Section 7 activity.” Section 7 is the provision of the National Labor Relations Act (NLRA) that protects employees’ rights to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection,”
The NLRB has applied this “reasonably construe” test to strike down a wide variety of seemingly innocuous employer policies, including policies requiring employees to “work harmoniously” or to conduct themselves in a “positive and professional manner.” We have written extensively about the NLRB’s extreme reach in this area, including No Union? No Matter – Labor Board is After You and Labor Board Finds DirectTV’s Handbook Policies Unlawful.
New Test for Facially-Neutral Policies
Last week, in a case entitled Boeing Company, the NLRB announced that it would abandon the “reasonably construe” test because it has been used to invalidate a large number of “common-sense rules and requirements that most people would reasonably expect every employer to maintain.” Instead, the NLRB will consider two factors: (1) the nature and extent of the potential impact on NLRA rights, and (2) legitimate justifications associated with the rule.
The NLRB also announced that three categories of rules will be delineated to provide greater clarity and certainty to employees, employers, and unions.
– Category 1 will include 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. Examples of Category 1 rules are rules requiring employees to abide by basic standards of civility. Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.
– Category 2 will include 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 will include 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 example would be a rule that prohibits employees from discussing wages or benefits with one another.
The NLRB emphasized that while policies and rules might be considered lawful in and of themselves, “the application of such rules to employees who have engaged in NLRA-protected conduct may violate the Act, depending on the particular circumstances presented in a given case.” In short, a lawful rule can still be applied in an unlawful (e.g. discriminatory) manner.
Applying the new standard, the NLRB concluded that Boeing lawfully maintained a “no-camera rule” that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit. They reasoned that the rule potentially affected the exercise of NLRA rights but that the impact was comparatively slight and outweighed by important justifications, including national security concerns.
Bottom Line
By abandoning the “reasonably construe” test, the NLRB is less likely to invalidate common-sense policies that have a minimal burden on the exercise of employee rights under the NLRA – even if the policy is poorly written or imprecise.
Nevertheless, it is still a good idea to critically evaluate your policies and handbook on a regular basis to insure that they are amply justified by legitimate business needs.