On February 17, 2021, President Biden nominated Jennifer Abruzzo because the Basic 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, through 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 might be “fairly 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 circumstances of employment. Chipotle Companies LLC, 364 NLRB No. 72, slip op. at 1 n.3 (2016).
Beneath the Trump administration, Lutheran Heritage was overruled by the Board in The Boeing Firm, 365 NLRB No. 154 (2017), which established a brand new check: “when evaluating a facially impartial coverage, rule or handbook provision that, when fairly interpreted, would doubtlessly intrude with the train of NLRA rights, the Board will consider two issues:
- The character and extent of the potential impression on NLRA rights.
- Reputable justifications related to the rule.
Beneath the Boeing balancing check, employer facially impartial guidelines and insurance policies are far much less prone to be struck down and this resulted in employers having higher leeway to implement broad handbook guidelines with out worrying that they is likely to 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 Basic Counsel’s memorandum, 21-04 wherein Abruzzo articulates a have to re-examine doctrinal shifts which have overruled “authorized precedents which struck an applicable steadiness between the rights of employees 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 normal. 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 can be coming and requires severe consideration for handbook overview, particularly of facially impartial guidelines that handed muster underneath Boeing. These requirements apply to each union and non-union employers. Because the NLRB strikes towards restoring the Obama Board precedent, employers needs 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 legislation.