12-28-2017
Overruling recent precedent, the National Labor Relations Board (NLRB) has altered the standard by which employer handbook policies will be evaluated to ensure compliance with Section 7 of the National Labor Relations Act (NLRA).Under the NLRB’s prior decision, Lutheran Heritage Village-Livonia, employer policies were unlawful if they could be “reasonably construed” by workers to limit their right to engage in concerted activity regarding the terms and conditions of their employment. Some policies pertaining to confidentiality, civility, and social media failed this scrutiny even when the employer’s justification was legitimate. In its newest decision, The Boeing Company, the NLRB has modified the standard. Going forward, when faced with a policy that does not intentionally interfere with employee rights under Section 7, the NLRB will look at: the nature and extent of the potential impact on NLRA rights and the employer’s legitimate justification for the rule.
Boeing had a policy that restricted the use of photo taking devices on company property. While the policy did not explicitly prohibit employees from discussing the terms and conditions of their employment, the administrative judge found that it could be “reasonably construed” to inhibit such activities. Under the new standard, the NLRB ruled that the policy was lawful because although it might impact Section 7 activities, it was “comparatively slight” and outweighed by security justifications.