The National Labor Relations Board recently adopted a fairer and more forgiving standard for determining whether work rules violate employees’ rights to engage in union-related and other concerted, protected activity. This means that employers nationwide now have more freedom to create policies that are reasonable and make sense.
In right-to-work states such as Virginia, where the majority of employers lack organized workforces, this may seem an unimportant turn of events. But employers take heed: workplace rules may unwittingly violate laws protecting the rights of even non-unionized employees to engage in organizing activities or other types of concerted activity.
The National Labor Relations Act (NLRA) generally protects the ability of non-supervisory employees to engage in concerted activities for the purpose of their mutual aid and protection regardless of union representation. For example, the NLRA could protect the exchange of wage rate information among employees in anticipation of requesting pay raises or the joint posting by employees of complaints of unsafe working conditions on social media platforms in an effort to garner public support.
Before Boeing, a work rule was unlawful if employees would reasonably construe the rule to bar or restrict activity protected by the NLRA even if the rule did not expressly target protected activity. For example, the National Labor Relations Board (the “Board”) previously found unlawful a general rule barring conduct that “imped[ed] harmonious interactions and relationships” at a certain hospital. The Board theorized that an employee could reasonably interpret the rule to bar any disagreement among employees—including protected activity consisting of disagreements among employees about the terms and conditions of employment.
In Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the Board rejected the previous standard making a rule unlawful if employees would reasonably construe it as barring protected activity. In replacement of the previous rule, the Board adopted a balancing test to determine the validity of a neutral work rule. Now, the Board evaluates (i) the nature and extent of the rule in question’s potential impact on NLRA rights and (ii) legitimate justifications for the rule. As an example of the application of the new rule, the Board stated that basic standards of civility, such as the hospital’s rule discussed above, are presumed to be lawful.
The facts in Boeing are a good illustration of this new standard in action. In that case, Boeing, the employer, maintained a rule that generally prohibited the use of a camera on company property without a valid business need or special permission. The reasons for the rule included protecting Boeing’s proprietary information, complying with federal contracts and accreditation standards, securing the facility, and protecting employees’ personal information. The Board acknowledged that the no-camera rule imposed a slight adverse effect on NLRA protected activity, such as potentially preventing employees from taking pictures of a worker protest at the facility. Nevertheless, the Board concluded that the “comparatively slight” adverse impact of the “no-camera” rule on NLRA rights was outweighed by the “substantial and important justifications” for the rule.
Boeing should not be seen by employers as allowing all work rules. In fact, there are still multiple ways in which a work rule, even one that may be reasonable on its face, could be unlawful. For example, a rule would likely be unlawful if an employer adopted it with the intent to stamp out or in response to protected activity or if the employer used or applied the rule in a way to hinder protected activity.
For example, an employer may have an obligation to create exceptions to neutral rules if it learns that the rule is actually inhibiting protected activity. In Boeing, the Board noted that there was no allegation that Boeing’s “no-camera” rule had “actually interfered” with or even actually prevented any protected, concerted activity, therefore leaving the door open that Boeing might have to create an exception to the rule to allow for protected activity under certain circumstances.
Moreover, Boeing makes clear that not all rules will receive equal scrutiny from the Board. While some work rules are presumed to be lawful, other rules implicate considerations of protected activity such that they warrant more exacting scrutiny. Similarly, some rules are still downright unlawful, such as a blanket rule barring employees from discussing their wages or benefits.
Although Boeing does not mean that employers can disregard considerations about the lawfulness of their rules under the NLRA, Boeing does represent the creation of a fairer and more forgiving standard for employers. Consequently, employers who, with the right intentions, adopt commonsense, fair, and neutral rules that take into consideration both their business interests and their employees’ NLRA rights are now less likely to trigger unwittingly claims that they are engaging in unfair labor practices. This should provide some comfort to employers who, in good faith, are looking to create a pleasant and productive workplace while also complying with their legal obligations under the NLRA.