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Workplace Rules Tightened

December 19, 2017

By Noah R. Jordan, Esq.

On Thursday the 14th, the National Labor Relations Board reversed its previous 2004 holding in Lutheran Heritage Village-Livonia, 34 NLRB 646.  In that case, the Board had established the standard governing whether a facially neutral workplace rule, policy, or employee handbook provision interfered with the exercise of rights protected by the Act.  The Board had held that any rule, policy, or handbook provision that could be “reasonably construed” by employees to prohibit their rights under the Act to be unlawful.  In reversing this decision, the Board established a new standard in Boeing Company, 365 NLRB No. 154, stating that when establishing rules, policies, and handbook provisions, it will consider (1) the extent of the potential impact of the rule/policy/provision upon employee rights under the Act and (2) the legitimate justifications associated with the rule/policy/provision.

Additionally, the Board created three categories of rules in an attempt to provide clearer guidance for employers and unions.  Category 1 rules include those that the Board deems to be lawful because either (1) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of employee rights under the Act or (2) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.  Category 2 rules include those that the Board deems to warrant further scrutiny.  Finally, Category 3 rules include those that the Board deems to be unlawful because they prohibit or limit protected conduct and the justification for those rules does not outweigh their adverse impact.

Under this new standard, the Board upheld Boeing Company’s rule prohibiting employees’ use of cameras without permission.  While the Board held that the rule potentially limited employees’ exercise of their rights under the Act, the impact of this imposition was outweighed by Boeing’s security concerns.

Why this decision is important for you: This decision, like that above, rolls back union’s rights under the Act, as well as those of the employees they represent.  While the Board previously drew a bright line at prohibiting workplace rules that impinged upon employees’ rights under the Act, this decision carves out an exception that paves the way for employers to enforce certain rules even if they might prohibit employees from exercising their protected rights.  Now, as long as an employer can satisfy the Board that its justification for a rule outweighs the infringement upon its employees’ rights, employers will be permitted to enforce that rule.

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