On December 14, 2017, the NLRB established a new standard governing NLRB scrutiny of employer handbooks, workplace policies and rules.  The new standard overturns and replaces the controversial Lutheran Heritage standard that has caused employers much consternation since 2004.

The National Labor Relations Act (“NLRA”) generally protects employees’ rights to act together to try to improve their pay and working conditions, with or without a union.  Discussion or criticism of pay, hours, safety, workload, or other terms of employment may be protected “concerted activity” under the Act.  In past cases, the NLRB has scrutinized employer policies and rules which restrict or punish employee conduct which would otherwise be concerted activity.

In Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the NLRB held that employers violated the NLRA by maintaining workplace policies that an employee would “reasonably construe” as prohibiting the exercise of NLRA rights.  This “reasonably construe” standard applied even if the employer policy did not explicitly prohibit such activities, and regardless of whether it was enacted in response to such activities.  Many employers found this standard unworkable in trying to formulate policies on topics such as: social media, employee behavior, camera/cell phone use, and others.

However, on December 14, 2017, the NLRB overturned the Lutheran Heritage “reasonably construe” test and replaced it with a new standard in The Boeing Company, 365 N.L.R.B. No. 154 (Dec. 14, 2017).  Under the new standard, the NLRB will now weigh the nature and extent of the policy’s potential impact on NLRA rights and the employer’s legitimate justifications associated with the rule.  For example, contrary to past NLRB decisions, the Board stated that it would uphold policies that require “harmonious interactions and relationships” or require employees to maintain basic standards of civility in the workplace.

Boeing had a no-camera rule that prohibited employees from taking pictures or videos without a valid business need and an approved camera permit.  The NLRB held that any adverse impact was outweighed by Boeing’s substantial and important justifications for the rule, including national security, among other things.

In the decision, the NLRB also announced three categories of scrutiny for such employer policies and rules, to provide greater clarity.

  • Category 1 consists of rules the NLRB designates as lawful to maintain, either because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights, or the potential adverse impact on protected rights is outweighed by justifications associated with the rule. The Board cited policies requiring basic standards of civility in the workplace as an example.
  • Category 2 includes rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether the adverse impact is outweighed by legitimate justifications.
  • Category 3 includes rules that are designated as unlawful to maintain because they would prohibit or limit NLRA protected conduct, and the adverse impact is not outweighed by any justifications. The Board cited a rule that prohibited employees from discussing wages with each other as one such illegal rule.

Employers should review their policies to be sure they are either Category 1 rules or determine if there are sufficient legitimate justifications in Category 2 rules to meet the NLRB’s new standard.  The NLRA applies to most private sector companies.

Attorneys at FHKAD routinely draft, advise and defend employers with respect to their policies and union relations.   Feel free to contact an attorney at (614) 221-1216.