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NLRB adopts new standard around workplace policies, handbooks

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Why? The standard from Boeing and LA Specialty Produce “permits employers to adopt overbroad work rules that chill employees’ exercise of their rights under Section 7 of the Act, which include the ‘right to self-organization, to form, join, or assist labor organizations, to bargain collectively… and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,’” said the board.

The decision acknowledges an important distinction in the previous framework, which relied heavily upon the assumption that a “reasonable employee” would be unlikely to misinterpret ambiguous rules such as bans on “abusive” or “threatening” conduct.  

The NLRB states that this assumption is faulty, as it disregards the nuanced perspective of an employee who might be contemplating Section 7 of the Labor Act.

“We clarify that the Board will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity,” the Board’s decision read.

“Consistent with this perspective, the employer’s intent in maintaining a rule is immaterial. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden, even if a contrary, noncoercive interpretation of the rule is also reasonable. If the General Counsel carries her burden, the rule is presumptively unlawful, but the employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, then the work rule will be found lawful to maintain.”

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