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The General Counsel at the National Labor Relations Board (NLRB) recently issued a guidance memo titled “Guidance on Handbook Rules Post-Boeing” to rein in the agency’s overreach when it comes to workplace policies. The memo spells out what types of rules are “generally lawful to maintain,” those “warranting individualized scrutiny,” and those that are “unlawful to maintain” under the principles put forward in the Board’s December 2017 Boeing decision.
The Boeing case was one of several notable Board decisions issued in the waning days of Chairman Philip A. Miscimarra’s term, and it adopted a new standard for evaluating the lawfulness of facially neutral workplace rules, policies, and employee handbook provisions. At issue is whether such rules and policies violate employees’ rights under 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.”
The old test for whether policies crossed that line was set by the 2004 case Lutheran Heritage Village-Livonia. In it, the NLRB ruled that an employer’s policy or rule will be found unlawful if it bars otherwise protected activity. Moreover, even if a rule does not expressly prohibit protected activity, the NLRB declared it will be found unlawful under three scenarios: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to Section 7 activity; or (3) the rule has been applied to restrict Section 7 rights.”
The Obama-era NLRB adopted a wildly expansive reading of what employees might “reasonably construe” to prohibit protected activity and set about undermining sensible and widespread workplace policies. Through a series of decisions and official guidance, the Board engaged in a campaign to outlaw uncontroversial workplace policies—policies that employers maintain for a variety of legitimate business reasons. In fact, there were so many examples of absurd decisions that it was enough to produce an entire report cataloguing them.
Fortunately, the Boeing decision restored some sanity to the Board’s approach to workplace policies by overruling Lutheran Heritage’s “reasonably construe” standard, saying, “The Board will no longer find unlawful the mere maintenance of facially neutral employment policies, work rules and handbook provisions based on a single inquiry, which made legality turn on whether an employee ‘would reasonably construe’ a rule to prohibit some type of potential Section 7 activity that might (or might not) occur in the future.”
The General Counsel’s memo makes clear that he is aligned with his colleagues in the Board’s majority. His list of policies “generally lawful to maintain” includes numerous types of rules that the previous majority had declared unlawful, such as those governing civility and insubordination, among many others. Moreover, he emphasized that rules should be viewed in context and “as they would by employees who interpret work rules as they apply to the everydayness of their job.” In other words, not through the lens of outlandish hypothetical situations.
When it comes to workplace policies, employers have sought clarity in this area of employment law for several years to no avail. Thankfully, it appears that the new majority and general counsel are prepared to deliver what the Obama-era NLRB failed to provide.