[co-author: Makenzie Way]
As we have discussed before, several years ago, the Board instituted a significant paradigm shift in analyzing the lawfulness of employers’ handbook policies in relation to employees’ Section 7 rights, when it issued its decision in
Boeing established a balancing test that takes into account the employer’s legitimate business interest for the policy at issue, and the nature and extent of the potential impact on NLRA rights. The new framework discarded the previous test of whether employees “would reasonably” construe the language to prohibit protected, concerted activity.
Since
Boeing, the NLRB General Counsel issued an Advice Memorandum providing extensive guidance regarding the three categories of employment rules, policies and handbook provisions the Board would consider as part of the balancing test, and the Board has issued a number of decisions analyzing employer handbook policies with this in mind (which we have discussed here, here a
Thursday, January 14, 2021
As we have discussed before, several years ago, the Board instituted a significant paradigm shift in analyzing the lawfulness of employers’ handbook policies in relation to employees’ Section 7 rights, when it issued its decision in
Boeing established a balancing test that takes into account the employer’s legitimate business interest for the policy at issue, and the nature and extent of the potential impact on NLRA rights. The new framework discarded the previous test of whether employees “would reasonably” construe the language to prohibit protected, concerted activity.
Since
Boeing, the NLRB General Counsel issued an Advice Memorandum providing extensive guidance regarding the three categories of employment rules, policies and handbook provisions the Board would consider as part of the balancing test, and the Board has issued a number of decisions analyzing employer handbook policies with this in mind (which we have disc
Seyfarth Synopsis:
Last week, the NLRB held in a 2-1 decision that an employer’s rules restricting certain types of employee communications on social media were lawful under the NLRA. However, the Board panel was sharply divided between its Republican majority and Lauren McFerran, its sole Democratic member. In a strongly worded dissent, Member McFerran took issue with the ruling, signaling that this pro-employer stance may be on the NLRB’s chopping block once a Democratic majority is installed under the Biden Administration.
For many years, the direction of the National Labor Relations Board has sharply oscillated depending on which political party has comprised the majority of its Members, and the divide between Republican and Democratic Board Members has been especially sharp in cases involving employer rules and policies. Under the Obama Administration, the Board found that many common workplace policies were unlawful under the National Labor Relations Act because