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VOLUME 13 | August 2018


The NLRB’s New Standard for Evaluating Workplace Rules, Policies,
and Employee Handbook Provisions Have Taken Flight – Are You on Board?

In Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001 , 365 NLRB No. 154 (December 14, 2017), the National Labor Relations Board announced a new standard governing whether facially neutral workplace rules, policies, and employee handbook provisions unlawfully interfere with the exercise of protected rights under the National Labor Relations Act (NLRA), overruling its earlier decision in Lutheran Heritage Village-Livonia , 343 NLRB No. 75 (2004). Under the previous Lutheran Heritage test, a workplace rule that did not explicitly prohibit protected activities, was not adopted in response to such activities, and was not applied to restrict such activities, nonetheless violated the NLRA if it could be “reasonably construed” by an employee to prohibit the exercise of NLRA rights – i.e., the “reasonably construe” standard.

Since the Board found “multiple defects” with the Lutheran Heritage test, it adopted a new standard in its place. See id . Under the new Boeing standard, “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.” Id. at 3.

The Board’s decision in Boeing seeks to provide “certainty” and “clarity” to employers, employees, and unions by creating three broad categories of work rules. Additionally, on June 6, 2018 the NLRB General Counsel issued a new guidance memorandum which provides additional clarification regarding the permissibility of work rules under this new standard.

Read more about the Boeing decision, and how it could impact your business by clicking the link below.

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