NLRB Dismantles Former Board’s Handbook Rule: What Does This Mean for Employers?

By Amelia J. Holstrom - Skoler, Abbott & Presser, P.C.

December 28, 2017

For 8 years, the Obama-era Board scrutinized employer handbooks and held that facially neutral policies and rules maintained by employers (i.e., rules that, as written, did not target protected activity) were violations of the National Labor Relations Act (NLRA) if an employee could “reasonably construe” the policy or rule to prohibit a right protected under the NLRA.  The “reasonably construe” standard came from the Board’s 2004 Lutheran Heritage decision and, since then, employers have struggled to find consistency in the decisions that followed.  The Board’s inconsistent decisions and subjective standard made it very difficult for employers to try to comply with Board law while at the same time trying to set and enforce reasonable workplace rules.  However, as discussed in a recent post, the tides may be turning for employers, and a new case may provide the change employers are looking regarding rules and policies.

On December 14, 2017, in The Boeing Company,   the Board overruled Lutheran Heritage and held that the “reasonably construe” standard will no longer apply to the Board’s inquiry into whether facially neutral workplace policies violate the NLRA.  In its place, the Board determined that when examining facially neutral policies and rules it will weigh two things: “(1) the nature and extent of the potential impact on NLRA rights; and (2) legitimate justifications associated with the rule.”

The Board, however, did not stop there.  It went on to identify and discuss three categories of rules to which the new standard will apply to “provide greater clarity and certainty to employees, employers, and unions”:

• The first category includes rules that the Board determines to be lawful because, when reasonably interpreted, they do not interfere with NLRA rights, or the employer’s justifications outweigh the potential adverse impact on NLRA rights. The Board specifically indicated the “basic standards of civility” would be permitted under this category, rules that the Obama-era Board had previously attacked.

• The second category includes rules that require “individualized scrutiny” by the Board to determine if they prohibit or interfere with NLRA rights and whether that interference is outweighed by legitimate employer justifications.

• The third, and final category, includes employer rules and policies which are unlawful because they would prohibit or limit NLRA rights in a way that is not outweighed by the employer’s justifications. The Board indicated that a rule that prohibits employees from discussing wages or benefits with one another would fall into this category.

Even though certain facially neutral policies and rules may be permitted under this test, application of those rules to employees who have engaged in NLRA-protected conduct is still not permitted and would violate the NLRA.

The bottom line is that employers must continue to carefully draft and revise their handbooks to comply with the new standard articulated by the Board in The Boeing Company.  As your ring in the new year, now is a good time to have you handbooks reviewed, revised, and reissued to your employees.