We have reported in blog articles and seminars in recent years on decisions by the National Labor Relations Board (NLRB) that invalidated employee policies and handbook provisions which sought, among other things, to promote workplace civility and reasonable behavior.  Last week the NLRB overturned the 2004 case that started that trend.

In the 2004 case, the NLRB ruled that an employer’s policy is illegal if employees could “reasonably construe” it to prevent them from exercising their rights to engage in concerted activity to improve the terms and conditions of their employment, whether they were unionized or not.  This led to a variety of policies being struck down, even if they seemed to be reasonable and common sense rules for behaving and interacting in the workplace.

The new case (The Boeing Company, 365 NLRB 154) involves a rule that restricts the use of cameras on Boeing property without a valid business need and unless approved by the company.  Boeing defended the rule as being necessary for security purposes and to protect its proprietary information.  The administrative law judge who first heard the case ruled that, based on the 2004 case, the no-cameras policy was illegal because employees would “reasonably construe” it to prevent concerted activity in protecting their labor rights.

The NLRB reversed, and rejected the “reasonably construe” standard.  The Board stated that this standard, as it has been applied in recent years, reflects

“. . . a misguided belief that unless employers correctly anticipate and carve out every possible overlap with [National Labor Relations Act] coverage, employees are best served by not having employment policies, rules and handbooks.  Employees are disadvantaged when they are denied general guidance regarding what standards of conduct are required and what type of treatment they can expect from coworkers.”                      

The NLRB cited several instances of “misguided” decisions, including those that found that policies requiring employees to “work harmoniously” or to conduct themselves in a “positive and professional manner” were illegal.

Under the new standard announced by the NLRB, employee policies, rules, and handbook provisions will be evaluated with an eye toward striking a proper balance between business justification and employee rights.  It further declared that it would establish three categories of policies, rules, and handbook provisions:

1. Policies that the Board broadly designates as not interfering with the exercise of employee rights to engage in concerted activity or where the potential adverse impact on such rights is outweighed by business justifications.  These include rules that require employees to “abide by basic standards of civility”.
2. Policies that warrant scrutiny in individual cases to determine whether they interfere with employee rights and whether protecting such rights is outweighed by business justifications.
3. Policies that the Board designates as being unlawful.  An example would be a rule that prohibits employees from discussing wages and benefits with one another.

This new balancing test should provide employers with more flexibility and certainty in fashioning workplace rules, policies, and handbook provisions.  This is especially timely in light of the heightened awareness of the need to have policies prohibiting and dealing with sexual harassment in the workplace.