On February 17, 2021, President Biden nominated Jennifer Abruzzo as the General Counsel of the National Labor Relations Board (“NLRB” or “Board”). On July 21, 2021, the U.S Senate confirmed the nomination. As the board shifts to a “pro-union” majority, employers must brace themselves for the changes that will soon follow.
Abruzzo has already articulated that she plans to return to the pro-union agenda mentioned in the last Democratic administration that was abandoned by President Trump. Specifically, during the Obama administration, the Board followed Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), concluding that employers’ facially neutral workplace rules violated the National Labor Relations Act (“NLRA”) if they could be “reasonably construed” by an employee to prohibit the exercise of NLRA rights. For example, the Obama board used Lutheran Heritage to invalidate employer rules directing employees to delete social media posts regarding employees’ wages or other terms or conditions of employment. Chipotle Services LLC, 364 NLRB No. 72, slip op. at 1 n.3 (2016).
Under the Trump administration, Lutheran Heritage was overruled by the Board in The Boeing Company, 365 NLRB No. 154 (2017), which established a new test: “when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things:
Under the Boeing balancing test, employer facially neutral rules and policies are far less likely to be struck down and this resulted in employers having greater leeway to implement broad handbook rules without worrying that they might be interpreted as interfering with employees’ NLRA section 7 rights.
As employers are making year-end plans to update their handbooks, they should be cognizant of the NLRB General Counsel’s memorandum, 21-04 in which Abruzzo articulates a need to re-examine doctrinal shifts that have overruled “legal precedents which struck an appropriate balance between the rights of workers and the obligations of unions and employers.” Abruzzo expressly identifies “Employer handbook rules” as an area for the NLRB to target and indicates that the Board is heading back to the Lutheran Heritage standard. The memorandum indicates that rules pertaining to the following subjects will receive scrutiny:
• Confidentiality rules
• Non-disparagement rules
• Social media rules
• Medical communication rules
• Civility rules
• Professional manner rules
• Offensive language rules
• No camera rules
Abruzzo’s memorandum foreshadows changes that are coming and requires serious consideration for handbook review, especially of facially neutral rules that passed muster under Boeing. These standards apply to both union and non-union employers. As the NLRB moves toward restoring the Obama Board precedent, employers should be ready to make updates in the coming year and should consult their favorite CDF lawyer about their handbook changes for 2022 to ensure that they are making changes consistent with the applicable law.