In addition to a major ruling returning to a commonsense joint employer standard, yesterday the National Labor Relations Board (NLRB) struck another blow for rationality by putting an end to the agency’s outlandish philosophy governing employee handbook cases during the prior eight years. As highlighted in a 2015 Workforce Freedom Initiative report Theater of the Absurd: The NLRB Takes on the Employer Handbook, the prior NLRB majority undertook a campaign to outlaw previously uncontroversial rules found in employee handbooks and employers’ social media policies. The campaign stemmed from the previous majority’s wildly expansive reading of Section 7 of the National Labor Relations Act, which says that employees have the right to engage in “concerted activity” for “mutual aid or protection.”
Examples of handbook policies the NLRB has struck down included those requiring employees to act courteously, rules to protect sensitive confidential and proprietary information, and even at-will employment policies. Moreover, Theater of the Absurd pointed out instances in which the NLRB appeared to be at odds with other federal enforcement agencies, such as the Equal Employment Opportunity Commission (EEOC), which in some cases requires employers to maintain policies the NLRB declared unlawful.
Yesterday’s ruling overturned the NLRB’s 2004 Lutheran Heritage Village – Livonia standard for judging employee handbook cases. The 3-2 majority said that moving forward the agency will balance the impact of a rule on workers’ rights and an employers’ reasons for maintaining it. Previously, the Board said that a policy is illegal if employees’ can “reasonably construe” it to chill their existing rights.
The underlying case in yesterday's ruling involved a policy by The Boeing Company that prohibited employees from taking photos on company property in order to protect sensitive information.
Much to the relief of employers, the Board’s new approach to employee handbooks would seem to bring down the curtain on the NLRB’s Theater of the Absurd.