Burr Alert: NLRB General Counsel Issues Much Needed Guidance on Employee Handbooks
On June 6, 2018, the General Counsel of the National Labor Relations Board issued a memorandum providing guidance on how employer rules should be interpreted following the Board's December 2017 holding in Boeing, which set forth a new standard for determining the legality of employer rules under the National Labor Relations Act. Following the issuance of the memorandum, employers can expect their work rules and handbooks to be subjected to less scrutiny than under the previous administration.
Prior to the Boeing decision, the Board applied a standard set forth in the Lutheran Heritage decision that prohibited any employer rule that could be construed as covering a protected activity under the NLRA. In Boeing, the Board set forth a balancing test that balances the nature and extent of the rule's potential impact on NLRA rights against the employer's legitimate justifications for the rule. The memorandum explains that, moving forward, under the new Boeing standard, there will be three categories of work rules: (1) rules that are generally lawful to maintain; (2) rules warranting individualized scrutiny; and (3) rules that are unlawful to maintain.