U.S. Government Agencies’ Fast Track Changes to Legal Standards (Part 1)
With the Trump Administration now in its 27th month (half-way through the first term), Federal agencies seem to be picking up the pace of fundamentally altering the legal landscape in which manufacturers operate. Keeping up with these changes can be a full time job.
In this blog post, I will highlight some of the more important legal changes the National Labor Relations Board (“NLRB”) has implemented with respect to work rules and policies. Future posts will summarize other changes at the NLRB and changes at the United States Department of Labor and the Equal Employment Opportunity Commission.
In a case called Lutheran Heritage (2004), the NLRB articulated a standard under which facially neutral policies and work rules would nevertheless be found unlawful if a hypothetical employee could “reasonably construe” the rule as prohibiting lawful “union” or “concerted protected” activities. Between 2004 when the case was decided and November 2017, the NLRB would routinely commence litigation against countless employers challenging neutral workplace practices and policies, even when there was no evidence any employee was prevented from organizing or impacted in the least by the rule.
In The Boeing Co. (2017), NLRB overturned Lutheran Heritage and held that facially neutral work rules (that is, rules which did not expressly prohibit union or protected activity) would be assessed on a case-by-case basis. The Board stated it would balance the potential impact on employee rights against a manufacturer’s legitimate justification for the rule.
Since the NLRB decided The Boeing Co., the General Counsel (the NLRB’s head prosecutor) has directed regional offices to dismiss or amend an uncounted number of pending lawsuits. The General Counsel has upheld rules:
Prohibiting dissemination of “user data” without authorization;
Banning employees from sharing “confidential” information and data;
Prohibiting the use of cellphone cameras during working time or in working areas at any time;
Restricting the ability of an employee to speak on behalf of the manufacturer on social media;
Imposing a “professional” dress code;
Prohibiting working for a competitor; and
Prohibiting the disclosure of confidential or proprietary information to the media without authorization.
Conveniently, the General Counsel has published a good number of his Advice Memos outlining his views on lawful work rules. Those memos can be found here: https://www.nlrb.gov/news-publications/nlrb-memoranda/advice-memos/advice-memoranda-dealing-handbook-rules-post-boeing
Manufacturers should proceed with caution when revising handbooks and workplace policies. The NLRB’s current approach may not survive after the next election and, even if it does, there is no certainty the courts will uphold the NLRB’s back-and-forth on this score.