The Lutheran Heritage Employee Handbook Standard
Section 7 grants employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (i.e., collectively bargain for, or otherwise discuss or take action in support of the terms and conditions of their employment). Conversely, employers – in both unionized and non-unionized private sector workplaces – must not “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRB.
The new standard involves the consideration of the “nature and extent” of a challenged rule’s “potential impact on [employees’] NLRA rights” and the “legitimate justifications associated with the rule.” The decision also lays out three categories by which the Board will classify rules:
Category 1: Rules that cannot be reasonably interpreted to interfere with NLRA-protected conduct or any inference of interference is outweighed by business interests will be legal in all cases. Examples of Category 1 rules are rules requiring “harmonious interactions and relationships,” and other rules requiring employees to abide by basic standards of civility.
Category 2: Rules will be legal depending on whether they are found to prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications. The NLRB stated it will focus on the application of the rule for this determination.
Category 3: Rules that limit or prohibit NLRA-protected conduct in a way not outweighed by business interests will be illegal in all cases. An example of a Category 3 rule would be a rule that prohibits employees from discussing wages or benefits with one another.
The rule at issue in Boeing Co. restricted workers’ use of camera-enabled devices such as cellphones on company property. The Board found that the NLRB judge, who previously found the rule to be unlawful, “gave no weight to Boeing’s security needs for the rule,” demonstrating that the employer’s “legitimate justifications” will now be considered and given weight by the Board.
The Boeing Co. decision opens the door for employers to review and revise their current handbooks and other work rules, which were most likely designed to comply with now-overturned Board precedent, which was aggressively pursued during the Obama administration.
Browning-Ferris Joint Employer Test
The Board ruled that the appropriate standard is whether the supposed joint employer’s control over employment matters is “direct and immediate.” As such, a potential joint employer’s liability and collective bargaining obligations are significantly reduced by the Board’s return to the prior standard.
Looking to 2018
If you would like assistance in examining handbooks or other work rules, or evaluating joint employment arrangements, please feel free to contact Katie Basch, Amanda Smith, or any other KWW attorney.