NLRB Signals Potentially Significant, Far-Reaching Changes to How Employers Manage the Workplace

The title is no understatement. President Trump’s newly appointed members of National Labor Relations Board (“NLRB” or “Board”) just announced their arrival with a loud bang – on December 1, 2017, the Board’s General Counsel (“GC”) issued a memorandum signaling a drastic reversal of many Obama-era NLRB’s rulings on a wide-range of topics, most of which apply to private (i.e., non-union) employers. While we will summarize all key aspects of the new GC’s memorandum, we will primarily focus on the area of law which affected the most employers, and often in the broadest way: the NLRB’s prior rules governing handbook policies and workplace rules.

Probably more than any other area of law, the prior NLRB’s rules governing workplace rules and policies was the most difficult for employers (and attorneys) to comprehend, and in many cases, to even believe. For example, under the previous NLRB it was unlawful for companies to have policies which prohibited:

  • “Disrespectful” conduct towards the company or managers (or policies which required “respectful” conduct)
  • Using “obscene and vulgar” language towards managers
  • Employees’ use of company trademarks or logos (such as on social media)
  • Employees’ use of company email for personal, non-business use (during non-working hours)
  • Disparaging the company or managers, whether at work, or on social media
  • “Defamatory, libelous, or slanderous” statements about the company or managers
  • Workplace gossip
  • Any conduct which “damaged” the company or its “reputation”
  • …and the list goes on like this, for miles

As a result of these rules, companies who revised their workplace policies over the past few years found they were required to make significant changes to some of their most fundamental, and long-standing rules. In many cases, these companies were required to revise their core values, some of which existed since the company’s inception, 20, 50, or even 100 years ago (since many core values, in some form or another, require “respect” or prohibit “disrespect”).

Indeed, the prior NLRB rules on employee policies affected nearly every single policy in a handbook. And often these changes were ones companies did not want to make, and they could not fathom a law requiring those changes actually existed.

The prior NLRB’s various rulings governing workplace policies were summarized by the former NLRB GC in a 30-page memorandum issued on March 18, 2016 (“GC 15-04: Report of the General Counsel Concerning Employer Rules”). In the new GC’s memorandum issued just a few days ago, the NLRB announced the 30 page memo was being thrown in the trash. And with it, likely all of the wide-ranging rules that greatly impacted companies’ workplace rules over the past few years.

But the new GC’s memorandum did not stop there. It also signaled a potential 180 reversal on various other NLRB rules issued under the Obama-era NLRB. Here are some other notable rulings the new NLRB seeks to reverse:

  • The Pier Sixty, LLC ruling which protects employees’ use of “obscene, vulgar, or other highly inappropriate conduct” (this one is a bit of a head-scratcher, since the NLRB’s ruling was actually upheld by a federal court of appeals)
  • Finding that employees have strong protections related to work stoppages, in a variety of contexts
  • Providing off-duty employees with rights to access company property
  • Placing strict limits on company’s rules governing social media use, even when employees’ statements could potentially violate anti-harassment policies
  • Expansion of union employees’ “Weingarten” rights (or, rights related to disciplining, drug-testing, etc.)
  • Expansion of the “joint employer” theory of liability (under which, for example, a franchisor could be liable for the actions of its franchisee)
  • And many other rulings

The changes signaled by the new NLRB appear to be nothing short of drastic and far-reaching. But, do these changes mean that companies should immediately review and revise all potentially affected workplace practices? That depends. First, consider that most (if not all) of the changes are employer-friendly, meaning failure to act in accordance with these new rules will likely not result in unlawful conduct (since the rules expand, rather than lessen, an employer’s rights). For example, just because an employer previously removed a rule prohibiting “disrespectful” conduct, does not now mean they are required to re-insert this rule. In addition, not all of the changes affect all employers. For example, not all employers are subject to “Weingarten” rights, which only apply to union employees.

On the other hand, there may be many actions which companies wanted to take, or rules they wanted to implement, but were unable to do so under the previous NLRB rules. For these companies, now may be a good time to assess whether those actions and rules are now permitted. Or, companies may wish to simply go back to their prior core values and workplace conduct rules, almost all of which included a prohibition on “disrespectful” conduct (in one form or another). In this regard, it may also be a good time to review and revise handbook policies and identify language to re-insert (if it were previously removed solely to comply with prior NLRB rulings).

Bottom line: what a company does, and to what extent, will depend on many factors, including the makeup of the workforce and how they were previously affected by prior regime. The first step will be to learn about all of the changes in greater detail, identify how you may be impacted, and identify any changes going forward wich may be beneficial.

As always, MEA is here to help our Members sift through all of this, and to better understand what rules apply to them, and how they may be affected. To this end, we are always here to answer our Members’ questions (such as through hotline), and we are currently planning on holding a special one-hour Trending Topic webinar early in the new year to explain some of these changes in greater detail.

Stay tuned. And as always, let us know how we can help.

Ciana Williams, Esq., SPHR
Employment Counsel
MidAtlantic Employers’ Association

*This Alert is provided for general informational purposes only and does not constitute legal advice.