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Recent Changes From The National Labor Relations Board Favor Employers


The National Labor Relations Board (NLRB) recently issued several opinions reversing Obama-era precedent. These changes are all employer-favorable and reduce the risk an employer’s policies or activities will be deemed illegal.

New Standard for Evaluating Workplace Policies

Prior to this decision, the NLRB issued numerous opinions finding handbook policies illegal, reasoning that broad confidentiality provisions, codes of conduct, social media policies, provisions prohibiting insubordination, and various other handbook policies interfered with employees’ rights to engage in protected activity.

In a recent opinion, the NLRB implemented a new standard governing whether workplace rules, policies, and employee handbook provisions unlawfully interfere with employees’ rights to engage in protected activities under the National Labor Relations Act (NLRA). When evaluating a policy that would potentially interfere with employees’ exercise of NLRA rights, the NLRB will evaluate (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule. The NLRB designated three categories of workplace rules: category 1 – rules that will be designated as lawful; category 2 – rules that warrant individualized scrutiny; and category 3 – rules that the NLRB will designate as unlawful. Although maintaining particular rules may be lawful, the application may be unlawful depending on particular circumstances.

Under the previous, broader standard, employers could have violated the NLRA by maintaining workplace rules that would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights.

Return to Prior Joint Employment Standard

The NLRB returned to its prior, narrower joint employment standard under which employers may be jointly liable for violations of the NLRA if there is proof one entity has exercised control over the essential employment terms of another entity’s employees and has done so directly and immediately in a manner that is not limited and routine. This current standard is a reversal of the 2015 Browning-Ferris Industries decision, which held that two entities may be deemed joint employers if they share or codetermine those matters governing the essential terms and conditions of employment. Under that standard, an entity was not required to exercise control over employees to be considered a joint employer, but instead consideration was given to whether the company had reserved that authority.

Two Decisions Reinstating Prior Collective Bargaining Obligations

The NLRB also issued two decisions affecting employer obligations in the context of collective bargaining. The first returned to the prior interpretation regarding what constitutes a unilateral change triggering bargaining obligations with a collective bargaining unit. Specifically, the NLRB held actions do not constitute a change if they are similar in kind and degree to an established past practice consisting of comparable unilateral actions. The second decision reinstates the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases.

There are likely more changes to follow, both from the NLRB and other administrative agencies. In light of these recent decisions, employers may want to review their handbook policies. Should you have any questions or concerns about developing or revising your company handbook, the employment law attorneys at Poyner Spruill are available to help.

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