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New Year, New NLRB for Non-Union Employers

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Written by Kristy A. Fahland
Posted Jan 8, 2018

The National Labor Relations Act (NLRA), well known for its rules and regulations pertaining to union employers, also grants several rights to non-union employees, including the right to act together to discuss and improve working conditions.  During the Obama Administration, the National Labor Relations Board (NLRB) increased its focus on non-union employers.  With decisions and/or guidance involving employee handbooks, social media rules, and independent contractor classification, the NLRB made its mark in the non-union workplace, restricting employers’ ability to regulate employee’s conduct and control the workplace. 

On November 17, 2017, Peter Robb was sworn in as the General Counsel for the National Labor Relations Board and has since indicated his intent to reconsider many of the highly controversial Board decisions issued during the Obama Era.  He also explicitly terminated many prior initiatives, including the initiative of pursuing an employer’s misclassifications of employees as independent contractors to itself be a violation of Section 8.  Accordingly, in the new year of 2018, we can expect new direction from the NLRB.

Already we have seen some of these changes take shape in two new decisions.  First, in a 3-2 decision involving the Boeing Company, the NLRB established a new test for evaluating employer handbooks, rules or policies that is more relaxed than its prior standard.  Overturning its previous decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the Board seeks to strike a balance between the impact of the challenged policy on an employee’s Section 7 rights, and the employer’s legitimate justifications for the policy.  Of key importance is the Board’s recognition that employers can once again require that employees maintain a reasonable level of civility in the workplace, without fear of violating Section 7.

Second, in another 3-2 vote, the board erased the landmark expansion of its test for determining joint employment that it had issued in Browning-Ferris Industries, 362 NLRB No. 186 (2015).  This decision means that going forward, a claimant will have to provide actual exercise of control (not indirect control or simply the right to control) in order to establish a joint-employer relationship.  This decision is another instance of the Board overturning the more employee-friendly standards that were used against many employers under the prior administration.

As we continue 2018, union and non-union employers both will want to keep an eye on the decisions of the NLRB, as those decisions will likely permit employers more flexibility in managing their workforce.

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