Top Labor Board Lawyer Calls for End of Trump-era Test for Rules

The National Labor Relations Board’s top lawyer asked the board to ditch its Trump-era legal test for workplace rules and employee handbooks and replace it with something based on its prior standard.

The legal framework from the NLRB’s 2017 ruling in Boeing is “more complicated, less predictable, and much less protective of employee rights” than the test from its 2004 decision in Lutheran Heritage Village-Livonia, according to General Counsel Jennifer Abruzzo’s brief filed Monday.

“In sum, both the Boeing majority’s decision to overrule Lutheran Heritage and the framework it adopted in its stead are arbitrary,” Abruzzo’s brief said.

The NLRB is reconsidering its standard for work rules in a case involving Stericycle Inc. The pending change has muddied the waters for employers, with some management-side lawyers saying it’s not too early for employers to begin retooling their employee handbooks in anticipation of a tighter standard, while others said it would be premature for companies to make changes before the NLRB rules.

The board’s legal framework for work rules has a broad impact, affecting both union and nonunion workplaces. Disputes over employer policies on issues like arbitration agreements, social media use, and workplace civility rules been heavily litigated at the board over the past decade.

Briefs on the case from employers, unions, and other members of the public were due Monday. Filings from the general counsel, the U.S. Chamber of Commerce, the HR Policy Association, and the Retail Litigation Center were available in the case docket as of press time, although more are expected.

The Chamber urged the NLRB to retain its Boeing standard and the precedents applying it to different employer policies.

“These standards have provided a predictable and administrable framework for employers to maintain reasonable work rules and fulfill their duty to respect employee rights,” the business advocacy group said.

The HR Policy Association and the Retail Litigation Center argued, in a joint brief, against returning to the Lutheran Heritage test, which they said led to common and innocuous rules being found unlawful.

Pro-Employer Tweaks

In Boeing, the NLRB struck down the element of the Lutheran Heritage test that said a neutrally worded rule would violate the National Labor Relations Act if employees would “reasonably” read it as restricting their rights under that law.

The Boeing decision said the lawfulness of rules should depend on how workers would view its impact on their rights balanced against the employers’ legitimate interests for having the rules. The ruling also created categories of rules depending on whether they’re lawful, unlawful, or require “individualized scrutiny” to determine their legality.

But Lutheran Heritage was responsive to legitimate business interests and “implicitly” allowed work rules that infringed on workers’ rights in limited circumstances, Abruzzo’s brief said.

The board should make that aspect explicit and say that special circumstances can permit rules that would normally violate the NLRA, thus giving employers an affirmative defense in cases involving allegedly unlawful workplace policies, her brief said.

Abruzzo also called on the NLRB to “formulate a model prophylactic statement of rights” that sets forth workers’ rights and explains that no rule should be interpreted as restricting those rights. If employers include such a statement in their handbooks, then they should get a rebuttable presumption that a worker wouldn’t reasonably read the rules to infringe on their rights, her brief said.

The case is Stericycle, N.L.R.B., Case 04-CA-137660, Briefs due 3/7/22.