On December 14, 2017, the National Labor Relations Board discarded its longstanding rule that facially neutral employer rules are unlawful if an employee would “reasonably construe” the rule as prohibiting an employee from engaging in protected, concerted activity under Section 7 of the National Labor Relations Act (NLRA). Moving forward, the Board held, it will balance the employer’s justification for the rule against the impact on NLRA rights, and take into account the facts and circumstances including the relative importance of the employer’s justification, the particular work setting or event, and the importance of the NLRA right at issue. This decision overrules 13 years of precedent, and offers some measure of respite to employers stumped by the Board’s past approach to evaluating handbooks, social media standards, technology policies, conduct rules, and other common workplace policies.
Moving forward, the Board will assign employer rules to one of three “categories” of increasing severity:
- Category 1: Lawful rules that do not prohibit or interfere with the exercise of NLRA rights; or rules where the potential adverse impact on protected rights is outweighed by the justifications on the rule. This category of lawful rules will include no-camera rules, and rules that require employees to “maintain basic standards of civility” or to foster “harmonious interactions.” Employers will still violate the Act, however, if a “Category 1” rule is applied in a way that suppresses NLRA-protected activity.
- Category 2: Rules that warrant individualized scrutiny. For these rules, the Board will look at whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
- Category 3: Unlawful rules that prohibit or limit NLRA-protected conduct without a countervailing justification. A rule prohibiting employees from discussing wages or benefits with one another would fall under this category.
It remains to be seen how the Board will treat categories of employer rules other than those specifically mentioned. The majority stated, however, that it believes this standard will provide employees and employers alike with greater certainty as to the validity of their employment rules and policies.
The two-member dissent strongly criticized the majority’s decision. Member Pearce called the decision a “how-to manual for employers intent on stifling protected concerted activity before it begins,” and Member McFerran denounced the majority’s actions as agency rulemaking by a newly-constituted Board majority.