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NLRB Overturns Precedent on Employer Work Rules
Dec 14, 2017

NLRB Overturns Precedent on Employer Work Rules

Topics: Union-Management Relations

Earlier today, the Trump NLRB, in a 3-2 decision, issued its most significant decision yet.  The Board overturned prior Board precedent established in Lutheran Heritage, 343 NLRB 646 (2004) regarding work rules and potential interference with section 7 rights.  The Trump NLRB reached its decision in Boeing Co. and Society of Prof. Eng. Employees Local 2001, establishing a new standard while noting, “Paradoxically, Lutheran Heritage is too simplistic at the same time it is too difficult to apply . . . produc[ing] rampant confusion for employers.” 

Under the new standard the Board majority held that, “when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”  As the Board applies this test moving forward, it will classify the rules it analyzes into one of three categories.  Generally, those categories are: 1 – lawful; 2 – warranting individualized scrutiny; and, 3 – unlawful. The Board indicated that the category of lawful rules will include those that “have a reasonable tendency to interfere with Section 7 rights, [but] the risk of such interference is outweighed by the justifications associated with the rules.” 

The Board majority applied this new standard to Boeing’s rule prohibiting employees from using cameras or cell phones to take photos or video in the workplace without a valid business need and prior approval.  It held that this rule was lawful and was justified by important national security concerns.  Board Members Pearce and McFerran each issued their own separate dissenting opinions. 

This decision will broaden employers’ ability to implement sensible and neutral rules on security, social media, confidentiality, investigation of complaints and other areas without material concern that the Board might stretch their meaning or scope to find that they are a violation of the NLRA because they could be interpreted in a way that results in an infringement on employees’ Section 7 rights.  We expect further guidance from the Board in this area as more decisions are issued applying section 7 to neutral employer policies and rules.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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