The National Labor Relations Board is affording dozens of employers the chance to have cases involving the legality of their workplace rules re-evaluated under a 2017 Board decision. The Board decision overruled Obama-era Board precedent that hampered employers’ ability to maintain workplace conduct rules without running afoul of the National Labor Relations Act. The Board’s new initiative, first reported by Bloomberg Law, involves remanding numerous cases that held against employers for reconsideration by NLRB administrative law judges.

Workplace rules have been a contentious issue under federal labor law for years. In 2004, the NLRB issued its controversial decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which set a tough standard to determine whether workplace rules, policies, and handbook provisions unlawfully interfere with rights of employees protected by the Act. In Lutheran Heritage, the Board held that a neutrally worded rule would violate the NLRA if employees may “reasonably construe” the rule to prohibit an employee’s exercise of his or her protected rights. Lutheran Heritage made it considerably harder for employers to maintain otherwise benign-sounding handbook provisions prohibiting rude or disruptive workplace behavior.

In 2017, after the composition of the Board shifted to a Republican majority, the NLRB issued Boeing Co., 365 NLRB 154 (2017). In Boeing, which overruled Lutheran Heritage, the Board held that determining whether an employer rule is unlawful involves a balancing test that measures the rule’s impact on employee rights against an employer’s legitimate business interests in maintaining the rule. The Board created a three-tiered rules classification system: “Category 1” rules are those the Board has specifically designated as lawful; “Category 2” rules are those that require individualized scrutiny to determine their legality; and “Category 3” rules are those specifically designated by the Board as unlawful.

On June 8, 2018, the NLRB’s General Counsel, Peter Robb, issued a memo providing specific examples of which rules would fall into each of these categories. For example, the General Counsel’s memo identified as a Category 1 rule one that prohibited “behavior that is rude, condescending or otherwise socially unacceptable.”

The Board’s latest action remands at least 40 workplace rules cases for a fresh look under Boeing. Any new decisions will strengthen Boeing as precedent. Moreover, the new decisions certainly will provide employers clear examples of what employee conduct they can and cannot prohibit or limit through workplace rules.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.