NLRB ESTABLISHES NEW STANDARD GOVERNING WORKPLACE POLICIES AND REINSTATES PRIOR JOINT-EMPLOYER STANDARD

By December 15, 2017Blog

Along ideological lines, the National Labor Relations Board’s (NLRB) Republican majority overturned two precedent setting cases by votes of 3-2. The first case involved a standard adopted only a few years ago to determine joint employer status. The second case reversed a 13 year-old standard governing whether facially neutral workplace rules and policies interfered with protected worker rights.

In a 3-2 decision involving The Boeing Company, NLRB overruled Lutheran Heritage Village-Livonia, which set the standard governing whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA).

In place of the Lutheran Heritage “reasonably construe” standard, the NLRB established a new test. Now when the board evaluates a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, they will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.

The NLRB also announced three new categories of rules that will be used to provide greater clarity to employees and employers.

  • Category 1 will include rules that the NLRB designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility. Thus, the NLRB overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.
  • Category 2 will include rules that warrant individualized scrutiny in each case as to 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 will include rules that the NLRB will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with one another.

Also in a 3-2 decision, the NLRB overruled the it’s 2015 decision in Browning-Ferris Industries, and returned to a pre–Browning Ferris standard governing joint-employer liability.

In all future and pending cases, two or more employers will now be deemed joint employers under the NLRA if there is proof that one has exercised control over essential employment terms of another’s employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine. The NLRB majority concluded that the reinstated standard is supported by the NLRA’s policy of promoting stability and predictability in bargaining relationships.

In both cases, the two Democrats on the board dissented.

In light of these new NLRB rulings and the annual onslaught of new year changes in federal, state, and local laws, nonprofits are encourage to conduct at least an annual review of all organizational policies and procedures by a licensed (in the states you do business in) employment law attorney.

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