Labor & Employment Law I AUGUST 15, 2023

The National Labor Relations Board Swings the Pendulum Back

The National Labor Relations Board (NLRB) shifts with changes in political administrations. The positions taken and decisions issued by the “Obama NLRB” differed greatly from those of the “Trump NLRB,” swinging the pendulum from employer friendly, to employee friendly, and back.

These differences are highlighted by the Board’s Obama era positions on employee handbooks. The Obama Board maintained that policies which an employee could “reasonably construe” as limiting rights provided by federal labor law were a violation of the National Labor Relations Act. This position applied to unionized employers and those without unions alike. Handbooks were revised at that time to purge policies which ran afoul of the new employee favoring guidelines. Those changes significantly focused on evolving technology, including social media and cell phone rules.

The Trump NLRB reduced those employee favoring positions, requiring an analysis of the impact on employee rights and the employer’s justifications for the policy.

The Biden NLRB has now swung the pendulum back. The new position establishes a default assumption of a violation when policies have a “reasonable tendency to chill employees from exercising their . . . rights.” The interpretation will be from the employee’s perspective, and alternative interpretations and the employer’s intent are immaterial. The employer then has the burden of demonstrating a substantial business interest and that a narrower rule would not sufficiently advance that interest.

What’s an employer to do? We advise that employers review and modify their policies at least annually. Such review is now even more important. These new rules will impact employers regardless of their union status. Begin a review now, and where necessary edit your policies. Consider adopting a disclaimer that the policy will not be applied to violate labor law rights. Talk to your employment attorney to make sure you are not inviting NLRB scrutiny of your policies.

If you have further questions or concerns about amending your policies and employee handbook to reflect the current NLRB expectations, please contact Michael D. Gifford of Howard & Howard Attorneys.