Trump Board Rolls Out New Standard for Employer Policies, Returns to Pre-Obama Precedent on Joint Em Trump Board Rolls Out New Standard for Employer Policies, Returns to Pre-Obama Precedent on Joint Em

Trump Board Rolls Out New Standard for Employer Policies, Returns to Pre-Obama Precedent on Joint Employment

With a Republican majority now controlling the five-member National Labor Relations Board, significant rollbacks of Obama-era policies have begun in earnest. Yesterday, the Board, which enforces the National Labor Relations Act (NLRA), reversed two significant precedents regarding workplace policies and joint employment. These decisions apply to nearly all private-sector workplaces, both union and non-union.

First, in Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the Board overruled its longstanding Lutheran Heritage test for determining whether the mere existence of an employer policy that could restrict employee rights violates the NLRA. Although the prior precedent was set in 2004 (during the George W. Bush administration), the Obama-era Board strictly scrutinized employer handbook policies, finding many common policies, such as requiring workplace civility, unlawful on their face. Under the Lutheran Heritage standard, the Board would find an employer policy unlawful if it could be “reasonably construed” by an employee to prohibit the exercise of NLRA rights, regardless of how or whether it was enforced. Under Boeing, the Board has adopted a more flexible approach, balancing the nature and extent of the rule's potential impact on NLRA rights and the employer's legitimate justifications associated with the rule. The Board provided three categories of policies, designating some as presumptively lawful, others as presumptively unlawful, with the remainder requiring case-by-case determinations. For example, workplace civility rules are presumptively lawful, unless they are actually applied to restrict protected activity, while a rule prohibiting discussion of wages and benefits would be presumptively unlawful. In the case at hand, the Board applied its new standard to find Boeing's rule banning the use of cameras in its facilities (except in very limited circumstances) lawful. Specifically, the Board pointed to the rule's relatively minimal impact on NLRA rights and Boeing's legitimate concerns, which included national security. Notably, Obama-era Board policy severely limited the ability of employers to restrict employee use of recording devices, even where substantial justifications were present. 

The Board also reversed its controversial 2015 decision in Browning Ferris, which had overruled longstanding precedent to greatly expand the circumstances in which two companies would be found to be joint employers of the same bargaining unit. Under Browning Ferris, joint employment could be found even where one employer had only reserved the right to control the employees in question and in fact had never actually exercised direct control. Yesterday, in Hy-Brand Industrial Contractors, Ltd., 356 NLRB No. 156 (Dec. 14, 2017), the Board returned to its prior joint employment standard, where joint employment will be found only if the putative joint employer has actually exercised control over the employees in question and the control was both direct and immediate. 

As significant as these decisions are, employers and unions shouldn't expect the Trump-era Board to slow down any time soon. Likely topics to be addressed in the near future include employee use of employer email systems for organizing purposes and the standard for determining appropriate bargaining unit composition. The Ice Miller Labor Group will continue to keep you up to date as these significant changes roll out over the coming months and years. If you have any questions, please feel free to contact Manolis Boulukos, Ryan Poor, or any other member of our Labor, Employment, and Immigration Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 
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