In the 2004 Lutheran Heritage decision, neutrally worded handbook rules that could be “reasonably construed” by employees to prohibit the exercise of National Labor Relations Act rights became unlawful. Since then, the Board repeatedly ignored context and completely disregarded employer explanations unrelated to union activity, to cite this decision as support to outlaw historically common work rules such as rules:
- Prohibiting profanity or abusive behavior toward co-workers (workplace civility rules);
- Against disclosure of confidential information;
- Prohibiting photography, and surreptitious audio or video recording in the workplace;
- Prohibiting employees from conducting “personal business” while on the employer’s premises;
- Prohibiting employees from making “false, disparaging, or misleading” statements about the employer online;
- Requiring employees to behave in a “positive and professional” manner; and
- Forbidding unauthorized employee use of the employer’s logos, insignia, and other trademarks.
Now, in place of the Lutheran Heritage “reasonably construe” standard, the National Labor Relations Board established a new test that focuses on two factors: 1) the nature and extent of the potential impact on NLRA rights, and 2) legitimate justifications associated with the rule.”
In cases in which one or more facially neutral policies, rules, or handbook provisions are at issue that, when reasonably interpreted, would potentially interferes with Section 7 rights, the Board will evaluate two things: 1) the nature and extent of the potential impact on NLRA rights, and 2) legitimate justifications associated with the requirements. Again, we emphasize that the Board will conduct this evaluation, consistent with the Board’s “duty to strike the proper balance between…asserted business justifications and the invasion of employee rights in light of the Act and its policy.
In Category 1 are rules that are lawful to maintain because they cannot be reasonably interpreted to impinge on NLRA rights, or the employer’s interests are sufficiently justified. The Board included so-called “civility” rules in that category. The term refers to common employer rules intended to maintain basic standards of good behavior.
Category 2 includes rules that “warrant individualized scrutiny” to determine whether they could be interpreted to impinge on NLRA rights.
Of course, there is an spoken third category – rules that the Board will designate as unlawful to even have on the books, like a rule prohibits discussion of pay or benefits among worker.
Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 843-3041 or emailing him at Matt@MattAustinLaborLaw.com.