On February 17, 2021, President Biden nominated Jennifer Abruzzo because the Common Counsel of the Nationwide Labor Relations Board (“NLRB” or “Board”). On July 21, 2021, the U.S Senate confirmed the nomination. Because the board shifts to a “pro-union” majority, employers should brace themselves for the modifications that can quickly observe.
Abruzzo has already articulated that she plans to return to the pro-union agenda talked about within the final Democratic administration that was deserted by President Trump. Particularly, in the course of the Obama administration, the Board adopted Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), concluding that employers’ facially impartial office guidelines violated the Nationwide Labor Relations Act (“NLRA”) in the event that they could possibly be “moderately construed” by an worker to ban the train of NLRA rights. For instance, the Obama board used Lutheran Heritage to invalidate employer guidelines directing workers to delete social media posts concerning workers’ wages or different phrases or situations of employment. Chipotle Companies LLC, 364 NLRB No. 72, slip op. at 1 n.3 (2016).
Below the Trump administration, Lutheran Heritage was overruled by the Board in The Boeing Firm, 365 NLRB No. 154 (2017), which established a brand new take a look at: “when evaluating a facially impartial coverage, rule or handbook provision that, when moderately interpreted, would probably intervene with the train of NLRA rights, the Board will consider two issues:
- The character and extent of the potential impression on NLRA rights.
- Reliable justifications related to the rule.
Below the Boeing balancing take a look at, employer facially impartial guidelines and insurance policies are far much less more likely to be struck down and this resulted in employers having larger leeway to implement broad handbook guidelines with out worrying that they may be interpreted as interfering with workers’ NLRA part 7 rights.
As employers are making year-end plans to replace their handbooks, they need to be cognizant of the NLRB Common Counsel’s memorandum, 21-04 during which Abruzzo articulates a must re-examine doctrinal shifts which have overruled “authorized precedents which struck an applicable steadiness between the rights of staff and the obligations of unions and employers.” Abruzzo expressly identifies “Employer handbook guidelines” as an space for the NLRB to focus on and signifies that the Board is heading again to the Lutheran Heritage commonplace. The memorandum signifies that guidelines pertaining to the next topics will obtain scrutiny:
• Confidentiality guidelines
• Non-disparagement guidelines
• Social media guidelines
• Medical communication guidelines
• Civility guidelines
• Skilled method guidelines
• Offensive language guidelines
• No digital camera guidelines
Abruzzo’s memorandum foreshadows modifications which are coming and requires severe consideration for handbook overview, particularly of facially impartial guidelines that handed muster beneath Boeing. These requirements apply to each union and non-union employers. Because the NLRB strikes towards restoring the Obama Board precedent, employers ought to be able to make updates within the coming 12 months and may seek the advice of their favourite CDF lawyer about their handbook modifications for 2022 to make sure that they’re making modifications according to the relevant regulation.