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On March 7, 2022 NLRB General Counsel Jennifer Abruzzo asked the NLRB to overturn Board precedent related to employee handbook rules.
The case at issue is Stericycle, Inc., which examines whether certain workplace rules infringe upon or restrict employees’ rights under the NLRA. As part of the Board’s proceedings, the parties (and interested third parties) were asked to state their position on whether the Board should overrule its 2017 Boeing decision as it relates to reviewing employer policies, and return to its older Lutheran Heritage standard. Under the Boeing standard, the Board reviewed workplace rules based on a two-step balancing approach, focusing more on what the actual impact of a particular work rule has on the work place. Under the Lutheran Heritage standard, the Board heavily focused on whether an employee could “reasonably construe” that a rule was meant to restrict an employee’s Section 7 rights under the NLRA. When the Board overruled the Lutheran Heritage standard in 2017, it was a welcome sign for employers.
From the employer’s perspective, the Lutheran Heritage standard was very employee friendly and unpredictable because it allowed the NLRB agent investigating a particular situation to construe how a hypothetical employee would view a particular rule – allowing them to infer if someone may think a rule infringes upon their Section 7 rights. This resulted in the Board overruling seemingly innocuous policies based on the Board’s perception of potential infringements. For example, rules related to harassment and civility policies were at times considered unlawful under Lutheran Heritage because of their potential impact. Under Boeing, those rules were far less problematic.
While the named parties, and multiple third parties on an amicus basis, just recently presented their post hearing briefs to the Board, this case represents one of the first situations where the General Counsel is actively working to impact the topics outlined in her advice memo. As we previously discussed, in August of 2021 General Counsel Abruzzo issued her Mandatory Submissions to Advice memorandum. In that memo she outlined several doctrinal shifts she was seeking. The first shift outlined in the memo related to Employer Handbook rules.
While it is unclear how the Board will decide the current case, it is clear that the General Counsel is holding true to her word in seeking to modify current Board law. Employers should continue to monitor Board decisions, given the significance of the issues the General Counsel is looking to modify and the complexity associated with them.
If you have any questions regarding the Board’s current makeup, or any labor & employment questions, please contact one of Frantz Ward’s labor & employment attorneys.