A new legal standard for evaluating workplace rules, adopted Wednesday by the National Labor Relations Board, “directly impacts every employer’s workplace policies and ability to enforce day-to-day workplace rules commonly found in employee handbooks,” a legal expert tells the McKnight’s Business Daily.
“Policies that were found to be lawful under the previous administration, such as civility rules and rules regarding cell phone use in the workplace, will now come under stricter scrutiny,” Brian Balonick, a partner at Fisher Phillips, said Thursday. “Employers will now be expected to justify and defend their policies on a case-by-case basis and should be prepared to articulate the legitimate reasons for having these policies in place to avoid unfair labor practice charges.”
The decision was “fairly predictable,” he said, because the NLRB has trended recently toward more employee-friendly standards.
Wednesday’s decision reverses a Trump-era standard that favored employers and instead builds on and revises the 2004 standard involving long-term care facility Lutheran Heritage Village–Livonia. That standard was overturned in 2017.
The Trump-era standard, the NLRB said, “gave too little consideration to the chilling effect that work rules can have on workers’ Section 7 rights” under the National Labor Relations Act.
“The long and short of the board’s decision in [Wednesday’s ruling] is that employers can now expect, much as they did prior to 2017, that the NLRB will declare unlawful many commonplace, and common sense, employer rules designed to foster a productive and harmonious work environment,” wrote attorney Daniel B. Pasternak of Squire Patton Boggs.
NLRB Chairman Lauren McFerran, along with members Gynne A. Wilcox and David M. Prouty voted in favor of the decision. Member Marvin E. Kaplan dissented.
In his dissent, Kaplan said that “a challenged rule will be found presumptively unlawful under their standard without any consideration of the legitimate employer interests it advances.”
