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NLRB Overturns Employee Handbook Standard

 The National Labor Relations Board (NLRB) overturned its Lutheran Heritage Village-Livonia (Lutheran Heritage) standard yesterday. This is a significant decision as the standard was used for weighing the legality of employee handbook policies. With the Board's Republican majority, it is no surprise to see the Board make more employer/management friendly decisions.

Under the Lutheran Heritage standard, an employer’s policy was illegal if employees could “reasonably construe” it to bar the employees from exercising their rights to engage in protected activity under the National Labor Relations Act (NLRA). The now overruled standard had been used to strike down employer policies ranging from employees making critical remarks about their employer on social media to making recordings in the workplace.

In overturning Lutheran Heritage the Board’s majority reasoned that, although the standard was well intentioned, it prevented meaningful consideration to the real world complexities connected with work place policies. Under the new standard, the Board will consider (1) nature and extent of a challenged rule's potential impact on NLRA rights; and (2) the legitimate justifications associated with the rule. The Board laid out three categories into which rules will be classified as a result of the application of the new test:

   1.   Rules that are legal in all cases because they cannot be reasonably interpreted to interfere with

         workers' rights or because any interference is outweighed by business interests

   2.   Rules that are legal in some cases depending on their application; and

   3.   Rules that are always illegal because they interfere with workers' rights in a way not outweighed

         by business interests.   

The above categories are not actually a part of the new test, but rather represent a classification of the results from the Board’s application the new test. The Obama-era Board, more often than not, found work rules to violate the NLRA if they could be read in any way to restrict employee rights. Now, under the Trump-era Board, the Board will have a more employer friendly common sense standard to use when evaluating workplace policies. Employers should begin reviewing their handbook policies straightaway. If you have questions about your workplace policies or handbook and would like to discuss them, feel free to contact one of our labor attorneys at (501) 371-9999.