NLRB Changes In Handbook Standards

On December 14, 2017, the new NLRB majority overturned the Obama-era rule that placed severe limits on employer handbook and policy rules that had been declared illegal if an employee might interpret the rule as prohibiting the exercise of union or concerted activities.  Such broad rules were said to be illegal because they "chilled" legitimate union or concerted activities.  In place of the "reasonably construe" standard, the NLRB has established a new test that focuses on "(I) the nature and extent of the potential impact on NLRB rights, and (ii) legitimate justifications associated with the rule."  The Boeing Company, 365 NLRB No. 154 (2017).  If the justification for the rule outweighs the potential impact on employees’ rights, the rule is not deemed unlawful.  Applying the new test to Boeing’s no-camera rule, the majority found that the employer’s justifications for the rule, including the protection of information implicating national security, proprietary trade secrets, and employees’ personal information, outweighed any potential impact on employees’ protected concerted activity. 

Under the Boeing case, any employer rules are lawful to maintain if they cannot be reasonably interpreted to impinge on NLRA rights, or the employer’s interests are sufficiently justified.  The Board indicated in the Boeing ruling that in general, civility policies requiring workplace harmony are now acceptable for employers to enforce.  Many expressed concern about Obama-era rulings which seem to create a conflict between the employers’ anti-harassment rules and NLRB policies.  The new Boeing precedent is likely to ultimately result in changes in NLRB policies toward confidentiality rules and other types of behavioral rules.   With so many changes now being made to the NLRB handbook and policy rules, employers will have to decide how aggressive they want to be regarding the uncertainty between the Obama-era rules and the new rules as established in the Boeing case.