By: Naomi Gemmell, Esq.
The National Labor Relations Act (NLRA) was intended to promote collective bargaining, but it also protects the rights of all non-supervisory employees—even those not involved in a union. Section 7 of the NLRA protects the rights of any “concerted employee activity” undertaken for mutual aid. This means that many different types of employee policies—including those related to confidentiality, civility, social media, cell phones, or dress—may violate Section 7. The definition of concerted activity has also expanded in the era of social networking, with the National Labor Relations Board (NLRB) holding that Facebook posts can count as concerted, protected speech.
During the Obama administration, the NLRB followed a legal standard established by the case Lutheran Heritage Village-Livonia, 343 NLRB 626 (2004) to determine whether employer policies complied with Section 7. Under this standard, the NLRB could not consider the employer’s justification for a facially neutral rule, or the extent to which the rule might burden Section 7 activity. Applying this standard, the NLRB routinely struck down facially neutral rules.
In December 2017, the NLRB adopted a new legal framework for assessing whether workplace policies comply with Section 7. This new framework, established by The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), permits the NLRB to balance potential restrictions of employees’ rights under Section 7 with legitimate employer justifications for maintaining particular rules. It was expected that this new policy would provide more flexibility for employers in creating employee handbooks and other policies. In practice, however, administrative law judges (ALJ) have struck down 75% of workplace rules they have analyzed under the new Boeing standard.
The New Legal Standard Under Boeing
Under the Boeing Framework, employer rules fall into one of three categories.
- Category I: Rules that are generally lawful to maintain
- A rule is generally lawful as long as (1) the rule does not prohibit or interfere with the exercise of NLRA Section 7 rights, or (2) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
- NLRB General Counsel Peter Robb’s memorandum listed 9 types of rules that fall under Category I, including civility rules, no-photography and no-recording rules, and disruptive behavior rules.
- Category II: Require individualized scrutiny
- Category II rules require scrutiny on a case-by-case basis to determine whether the rule’s adverse effect on Section 7 rights outweigh the employer’s legitimate justification for the rule.
- Category III: Rules that are generally unlawful to maintain
- Rules fall under Category III if they have predictably had an adverse impact on Section 7 rights that outweighs any employer justification for the rule.
- The General Counsel’s memorandum specified two types of rules that fall under Category III: (1) confidentiality rules regarding wages, benefits, or working conditions, and (2) rules against joining outside organizations or voting on matters concerning the employer.
Judges Reject 75% of Workplace Rules Under Boeing
Employers cannot rely on particular types of rules to consistently fall under a particular category. For example, in Motor City Pawn Brokers, Inc. (Case No. 07-CA-179458, October 22, 2018), the employer justified restrictions on foul language, badmouthing others, and bullying with its general desire to maintain a civil work environment. Despite the General Counsel’s guideline that civility rules are generally considered lawful, the Administrative Law Judge (ALJ) found that the restrictions were classified as Category II. The Judge reasoned that the rules encompassed communications and associations among employees, and therefore were not just workplace civility rules.
The Motor City case is just one example of many. In the fall of 2018, the NLRB began remanding cases back to ALJs and regional offices for reconsideration under the Boeing Framework. Bloomberg Law examined 34 of these decisions involving 77 rules. Bloomberg found that judges struck down 75 percent of workplace rules they analyzed under Boeing. According to Bloomberg, the only types of rules the ALJs found lawful more frequently than not were civility rules, those prohibiting conduct that disparages or embarrasses employers, and those restricting photography or recording audio or video.
Given this recent trend in NLRB cases, employers should carefully consider which of their policies may interfere with employees’ Section 7 rights, including employee policies related to confidentiality, civility, social media, cell phones, or dress. Even if a legitimate business purpose is being served, there is still a possibility that a policy may be in violation of Section 7. Failure to comply with Section 7 could result in significant penalties.
If you have any questions regarding employment laws or these employment law updates, please contact Naomi Gemmell. Naomi is an Associate in the firm’s Employment and Litigation Practice Groups. Naomi is based in Leech Tishman’s El Segundo, CA office and can be reached at 424.738.4400 or email@example.com.
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