My work rule is legal today, but what about tomorrow?

Whenever the White House switches from one party to the other, there are risks because new appointments to the National Labor Relations Board (NLRB) mean changes will occur in how it interprets and enforces the National Labor Relations Act (Act). Based on a recently issued notice and invitation to file briefs, all signs indicate we’ll soon see changes in the standard the Board uses to determine whether work rules interfere with employee rights under the Act.

Current standard

Since December 2017, the NLRB’s standard to determine whether facially neutral employer work rules violate the NLRA considers (1) the policy’s potential impact on protected concerted activity and (2) the employer’s legitimate business justifications for maintaining it. Under the standard, if the justifications for the rule outweigh its potential impact on employee rights, then the rule is considered lawful. If, on the other hand, the potential impact on employee rights outweighs the justifications for the rule, then it’s unlawful.

In one case where the NLRB applied the current standard, the employer had a work rule restricting the use of camera-enabled devices such as cell phones. Using the devices to capture images or video was prohibited without a valid business purpose and a camera permit reviewed and approved by the company’s security department. “Business purpose” was defined as a “determination made by the authorizing manager that images or videos are needed for a contractual requirement, training, technical manuals, advertising, technical analysis, or other purposes that provided positive benefit to the company.”