New England Biz Law Update
The National Labor Relations Board (NLRB) may be updating its framework for workplace rules and employee handbooks. A ruling is expected within the next several months that could affect any number of HR policies.
The NLRB framework has implications for policies surrounding arbitration, moonlighting, strikes, cell phones, social media activity, confidentiality, gag orders, communicating with the media, workplace conduct, and more.
Under the Trump-era board, the NLRB applied the Boeing case with respect to employee handbooks. The Boeing test balanced alleged employee rights restrictions against an employer’s business justifications for implementing a policy. The Boeing framework was considered more flexible and employer-friendly, and many employers adjusted their handbooks accordingly.
The previous standard, adopted under the Lutheran Heritage case, prohibited handbook policies that an employee could “reasonably construe” to prohibit certain protected actions. For example, a policy that prohibited sharing of “confidential information” would be considered unlawful if it failed to outline exceptions for protected activity, such as sharing employee compensation information.
Critics say the Lutheran Heritage test often left employers guessing over what would and wouldn’t fail an NLRB challenge.
A public comment period closed in early March, but a final decision is still unlikely for several months. Risk-adverse firms might want to start reviewing their handbooks now. That will give companies more time to plan for the new, restrictive interpretations that may be coming.
