NLRB Changes Standard For Evaluating Workplace Rules And Approves Employer's No-Camera Policy

Volume 16, Issue 23
December 21, 2017

Under its new Republican majority, the National Labor Relations Board (NLRB or Board) has significantly changed how it will determine whether an employer's workplace rules are unlawful under the National Labor Relations Act (NLRA). Previously, under the case of Lutheran Heritage Village-Livonia, (2004), the Board would find an employer's rule unlawful if it could be "reasonably construed" by an employee to inhibit the exercise of NLRA rights.  On December 14, 2017, the Board issued a decision in the case of The Boeing Company using language that is music to every employer's ears.  The Board stated that the broad Lutheran Heritage standard has been used to "invalidate[] a large number of common-sense rules and requirements that most people would reasonably expect every employer to maintain."  As such, the Board overruled Lutheran Heritage and established a new test for evaluating employer rules.

The Board classified Lutheran Heritage's standard as a "single-minded consideration of NLRA-protected rights, without taking into account any legitimate justifications associated with policies, rules and handbook provisions."  Under the Board's new test, if a rule could reasonably be interpreted to potentially interfere with the exercise of NLRA rights, the Board will now consider two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) the employer's legitimate justifications associated with the rule.  This test will allow the Board to balance the employer's business justification for the rule with any impact upon the employee's rights.

Moreover, in order to provide "greater clarity and certainty to employees, employers, and union," the Board will now use three categories when analyzing rules:

* 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 it has 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 of a Category 3 rule would be one that prohibits employees from discussing wages or benefits with one another.

The Board explained that in future cases it will determine what types of additional rules fall into each of these categories.

The Board then used its new test to analyze Boeing's long-standing policy against the use of cameras without a valid business need and prior approval.  Boeing explained that this rule is an integral component of its security protocol that is necessary to maintain its accreditation as a federal contractor.   Boeing also argued that the no-camera rule helps prevent the disclosure of Boeing's proprietary information, limits the risk that employees' personally identifiable information will be released, and limits the risk of Boeing becoming a target of a terrorist attack.

The Board found that while this rule may potentially affect the exercise of NLRA  rights, the adverse impact is "comparatively slight."  The Board explained that although it is possible that two or more Boeing employees might be prohibited from taking photographs of protected activity, the no-camera rule would not prevent them from engaging in the protected activity.  The Board stated:  "Taking photographs to post on social media for the purpose of entertaining or impressing others, . . . , certainly falls outside of the Act's protections."

The Board also found that any risk of restricting employees' NLRA rights was "outweighed by substantial and important [employer] justifications."  Moreover, and importantly for all employers, the Board held that "[a]lthough the justifications associated with Boeing's no-camera rule are especially compelling, we believe that no-camera rules, in general, fall into Category 1, types of rules that the Board will find lawful . . . ."

This decision provides great relief to employers whose common sense, reasonable rules have been under attack by the NLRB for years.   We will continue to monitor the Board's rulings under this new test so that we can keep you updated on which rules may now be safe to use.  In the meantime, if you have questions during this transition period, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.