Go ahead and pull those old employee handbooks out of the trash!


Just be sure to wipe off the coffee grounds.

And cross out all of those outdated references to MySpace and Friendster in the social media policy.

What gives, Eric?

Well, yesterday, the National Labor Relations Board continued its mad dash to erase all of the last several years of questionable jurisprudence. Along with obliterating Browning-Ferris Industries and reinstating the prior joint-employer standard — more on this next week — the Board established a new standard for workplace policies with this opinion in The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001.

Fortunately, the Board’s press release did a nice job of digesting The Boeing Company decision. So, I shall quote from it liberally, starting now:

Under the prior Lutheran Heritage standard, the Board found that employers violated the NLRA by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, if the rules would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights.

In place of the Lutheran Heritage “reasonably construe” standard, the Board established a new test: 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.

Tell us more about this new test, Board:

Prospectively, three categories of rules will be delineated to provide greater clarity and certainty to employees, employers, and unions.
  • Category 1 will include rules that the Board 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 Board 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 Board 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.

In reverse order, Category 3 speaks for itself. Not that you would ever maintain a policy that prohibits employees from discussing wages or benefits with one another. (Blink twice if you need help with that).

Category 2 is akin to punting. Although I would expect, under this Board, that few employees will be able to return that kick for a touchdown.

Category 1 fits the theme of this blog post. Remember when you took the red pen to your employee handbook after reading this prior blog post. Well, grab some Wite-Out. The days of the Board presuming that your employees are too dimwitted to figure out that a company’s civility rule doesn’t preclude employees from discussing working conditions with one another are over.

Better yet, forget the Wite-Out.

Between this Board decision and this and this, call an employment lawyer to help you button up your employee handbooks for 2018.

Hey, I’m an employment lawyer.

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