The National Labor Relations Board (NLRB or "Board") is the federal agency responsible for enforcing the National Labor Relations Act (NLRA), which guarantees the rights of most private sector employees to organize and engage in group efforts to improve wages and working conditions. Like most federal agencies, the NLRB's agenda is often subject to change based on the political leanings of the president. Under the Trump administration, the NLRB adopted a more employer-friendly rule on employer policies, such as those found in employee handbooks and their effect on the exercise of NLRA rights (the "Boeing Rule"). However, with a pending decision and a Democratic-majority Board, many are speculating that the rule will morph once again, possibly back to the more restrictive standard from before the Trump administration (the "Lutheran Heritage Rule") or possibly to something even more restrictive. Read on to find out how you can be prepared for whatever is next on the horizon.
Under the more restrictive Lutheran Heritage Rule, employers were not permitted to enact any rule or policy that could be "reasonably construed" by an employee to prohibit the exercise of their NLRA rights, such as the right to join a union. This was the case even where the employer's rule does not explicitly prohibit protected activities, is not adopted in response to such activities, and is not applied to restrict such activities
Under the current Boeing Rule, employers can implement policies that are facially neutral, even if an employee might reasonably interpret the policy as a restriction on their right to organize. If the policy could reasonably be interpreted to interfere with NLRA rights, the NLRB will evaluate (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.
For example, in Boeing, the NLRB considered an employee handbook provision that prohibited employees from bringing cameras or camera-enabled devices such as cell phones into the workplace. Under the Lutheran Heritage Rule, the policy was found to be unlawful because it could have a chilling effect or be reasonably construed by employees to prohibit protected activity under the NLRA. Under the Boeing standard, the court determined that there was a legitimate justification for the rule – namely Boeing's desire to protect confidential and secure information. This, when contrasted with the "comparatively slight" effect on employee's NLRA rights, led the NLRB to conclude that the policy was lawful.
Now, however, there is a pending decision before the NLRB – Stericycle, Inc. – which has the potential to shake things up once again. Many are speculating that the Democratic-majority Board will overrule the more employer-friendly Boeing Rule and replace it with something more restrictive (whether that's back to the Lutheran Heritage Rule or something else entirely). However, there are many entities, including the U.S. Chamber of Commerce, that prefer the "predictable and administrable" rule from Boeing and are urging the NLRB to keep it around. All of this is a strong indicator that employers should be anticipating some sort of change and should begin considering which rules and handbook policies might come under scrutiny. The following are some examples of the types of rules to consider.
Boeing vs. Lutheran Heritage – Examples of Policies That Walk the Line
Policies that promote a "harmonious workplace" often prohibit employees from using abusive language toward others and encourage employees to cooperate with one another. However, these rules may come under fire. While typically acceptable within reason under the Boeing Rule, under the Lutheran Heritage Rule, the NLRB found that a policy that prohibits making false, vicious, profane, or malicious statements about the employer or coworkers could reasonably be construed to prohibit the exercise of NLRA rights and was thus unlawful.
Employers often wish to include policies in their handbooks that restrict their employees' use of social media, particularly while they are on the clock. However, this is another example of a policy that the NLRB has previously regarded with a discerning eye. While policies restricting workers' social media use and emphasizing workers should be "respectful and professional" when discussing the company were presumptively lawful under Boeing, similar policies were not permissible under Lutheran Heritage. Similar to the harmonious workplace policies, under the more restrictive standard, the NLRB forbade a policy that prohibited employees from posting incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements on social media.
Employers frequently want to specify in employee handbooks that workers may not speak to the media on behalf of the company without permission. Under the Boeing Rule, these policies were frequently upheld because employers have a legitimate interest in designating who may speak to the news media on their behalf in order to control messaging and mitigate risks of economic and reputational harm. However, under the more stringent Lutheran Heritage Rule, many of these policies were deemed invalid because they might be construed to prevent an employee from speaking with the media about their terms and conditions of employment.
What Should I Do Now?
While it is not expected to rule for another few months, the NLRB may choose to apply new standards retroactively to all pending cases, and indeed, this was the case when the Board switched to the more relaxed Boeing standard. While the NLRB is less likely to retroactively apply a more restrictive rule, flagging policies that may not pass muster under the Lutheran Heritage (or other more restrictive standard) may save employers time in the future so they can identify handbook provisions and policies that are likely to need immediate, prospective revisions.
For assistance with your employee handbook or other employment practices and policies for potential trouble areas, please contact the authors of this article or any other attorney in Venable's Labor and Employment Group. And please subscribe to our newsletters and alerts to receive updates on this evolving area of law.