KingSpry New NLRB Standard Enforcement of Workplace Policies

NLRB Establishes New Standard Governing Enforceability of Workplace Policies

Photo of attorney Brian J. Taylor

Posted on January 2nd, 2018
by Brian J. Taylor

In a groundbreaking decision involving the Boeing Company reached this past month, the NLRB eased the standard of review regarding the visibility and enforceability of employer issued handbooks.

In past decisions, policies governing employment-related conduct including civility and insubordination were struck down if the regulations could be reasonably construed to prohibit NLRA (National Labor Relations Act) protected activity.  Known as the Lutheran Heritage standard and in place since 2004, Lutheran Heritage held that workplace rules violated the NLRA if they: (1) were promulgated in response to union activity, (2) have been applied in the past to restrict the exercise of NLRA rights, or (3) would be reasonably construed by employees to prohibit NLRA protected activity. 

The Lutheran Heritage Village decision was intended to give a standard of review to facially neutral workplace rules. In a split decision, the Board established a new test, announcing that they will review and evaluate two factors: (1) the nature and extent of the potential impact of NLRA rights, and (2) legitimate justifications connected to the rule.

The Board also announced the creation of three categories of rules: (1) lawful because when reasonably interpreted they do not prohibit or interfere with the exercise of NLRA rights, (2) rules that indicate a need for individualized scrutiny and (3) unlawful rules because they impinge on NLRA protected activity.

Many observers had argued that the Lutheran Heritage standard had evolved into a powerful tool allowing expansion into the regulation of the non-unionized sections of the workforce in that it had allowed the NLRB to rule upon the enforceability of handbook provisions that had no connection to union or other protected activity.

In the Boeing case, the handbook provision in question regarded the “no camera rule” which precluded the use of photographic devices on company premises. 

In a 3-2 vote, the Board held that though the provision potentially affected the exercise of NLRA related activities, the impact was outweighed by more important justifications, including national security.  In upholding Boeing’s policy under the new standard, the NLRB broadened its focus beyond the mere text to include an examination of the asserted justification, as well as distinctions between different types of workplaces and particular events that underline the handbook provisions purpose.

The point to be taken away from this reversal of the standard is that there will now be an increased importance placed on asserted justifications and a retreat from the expansion into non-union sectors of the workplace.  The re-working of the Lutheran Heritage standard represents a significant shift in that the NLRB has cited and relied upon it in support of over 220 Board decisions in the past 13 years.




The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice GroupJeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.