NLRB axes Lutheran Heritage Standard
In a 3-2 decision, the NLRB overruled its prior decision regarding how it analyzes whether a facially neutral workplace rule, policy or employee handbook provision interferes with the exercise of rights protected by the National Labor Relations Act (“NLRA”). The Board’s prior standard was unmanageable for employers because the Board would invalidate any policy, rule or handbook provision that could be “reasonably construed” by an employee to prohibit the exercise of NLRA rights even if the rule did not explicitly prohibit protected activities, was not adopted in response to such activities, and was not applied to restrict such activities. Thus, employers were required to surmise how employees might perceive and interpret the rule, policy or handbook provision. As the Board noted, the old standard “has been exceptionally difficult to apply, which has created enormous challenges for the Board and courts and immense uncertainty and litigation for employees, unions and employers.”
Replacing this unmanageable standard, the Board announced that it would instead “evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.” Thus, employers can now offer business justifications for rules that may have previously been deemed unlawful because employees could perceive them as prohibiting protected activities.
The Board also announced that, prospectively, three categories of rules will be delineated to provide greater clarity and certainty to employees, employers, and unions.
- Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are no-camera requirements and rules requiring employees to abide by basic standards of civility. Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.
- Category 2 will include rules that require individualized review as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
- Category 3 will include rules that the Board designates as unlawful to maintain because they prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example is a rule that prohibits employees from discussing wages or benefits with one another.
NLRB overturns Browning-Ferris
In Hy-Brand Industrial Contractors, Ltd., 365 NLRB 156 (2017), the National Labor Relations Board, in a 3-2 decision, overturned the previous joint-employer standard articulated in Browning-Ferris Industries, Inc., which very broadly defined joint-employers. Under the Browning-Ferris standard, “indirect control, even a power reserved by contract but never exercised, would be considered and could suffice, standing alone, to find joint-employer status.” This standard created potential liability for multiple employers working together through staffing and other contractual relationships for each others’ employees.
The Board’s decision in Hy-Brand Industrial Contractors, Ltd. restored the standard used before Browning-Ferris. The pre-Browning-Ferris standard holds that: proof of indirect control or contractually-reserved control that has never been exercised will not be adequate to establish a joint-employer relationship. Now, to be deemed a joint-employer, a business must have a direct and immediate control over the employees in question. After announcing the decision to return to the pre-Browning-Ferris standard, the Board noted its “return to a standard that has served labor law and collective bargaining well, a standard that is understandable and rooted in real world. It recognizes joint employer status in circumstances that make sense and foster stable bargaining relationships.”
KMK Legal Alerts and Blog Posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. Please consult with counsel of your choice regarding any specific questions you may have.
ADVERTISING MATERIAL.
© 2019 Keating Muething & Klekamp PLL. All Rights Reserved
- Partner
Randy Ayers helps employers manage all issues related to labor relations, including collective bargaining, arbitration and litigation of disputes involving collective bargaining agreements and proceedings before the ...
Topics/Tags
Select- Labor & Employment Law
- Employment Law
- Arbitration
- Employer Policies
- Employer Handbook
- Employment Litigation
- National Labor Relations Act
- National Labor Relations Board
- Federal Arbitration Act
- Americans with Disabilities Act
- Labor Law
- Employment Settlement Agreements
- EEOC
- Social Media
- NLRB
- Litigation
- Title VII
- Wage & Hour
- Transgender Issues
- Sexual Harassment
- ADAAA
- Employer Rules
- Sexual Orientation Discrimination
- Unions
- Discrimination
- Technology
- Overtime Pay
- Accommodation
- Privacy
- Disability
- Representative Election Regulations
- FMLA
- Workplace Violence
- NLRA
- Sixth Circuit
- Department of Justice
- Department of Labor
- OSHA
- Fair Labor Standards Act
- Disability Discrimination
- Equal Employment Opportunity Commission
- Reasonable Accommodation
- Religion Discrimination
- Gender Identity Discrimination
- Posting Requirements
- Class Action Litigation
- Disability Law
- E-Discovery
- Evidence
- Family and Medical Leave Act
- Environmental Law
- Older Workers' Benefit Protection Act (OWBPA)
- Benefits
- Privacy Laws
- Telecommuting
- Workplace Accommodations
- Electronically Stored Information
- Affirmative Action
- Equal Opportunity Clause
- Compensable Time
- Pregnancy Discrimination
- Security Screening
- Supreme Court
- Healthcare Reform
- Occupational Safety and Health Administration
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Unemployment Insurance Integrity Act
- Return to Work
- Seniority Rights
- American Medical Association
- Attendance Policy
- Classification
- Fair Minimum Wage
- Federal Minimum Wage
- Misclassification
- State Minimum Wage
- Wage Increase
- Confidentiality
- Equal Pay
- Genetic Information Discrimination
- Media Policy
- National Origin Discrimination
- Race Discrimination
- Retaliation
- Disability Leave
- Social Media Content
- Taxation
- Employment Incentives
- HIRE Act
- Social Security Tax
- Antitrust
Recent Posts
- Kentucky Highest Court Strikes Down Enforceability of Pre-Employment Arbitration Agreements
- SCOTUS Upholds Mandatory Individualized Proceedings in Arbitration Agreements
- Supreme Court Finds Auto Service Advisors Exempt from Overtime Pay
- NLRB Taking Steps to Review Quickie Election Rule
- NLRB Issues Two Important Decisions for Employers
- Legal Concerns Regarding Mandatory Flu Vaccination Programs
- Does Mandatory Individual Arbitration Violate the NLRA: Supreme Court Hears Argument
- DOJ Reverses Title VII Interpretation Regarding Transgender Workers
- Seventh Circuit Rules That Title VII Covers LGBT Job Bias
- The Madness of March