NLRB landscape shifting (again) for nonsolicitation, other workplace policies

It should come as no surprise that President Joe Biden’s appointment of Jennifer Abruzzo as General Counsel (GC) of the National Labor Relations Board (NLRB) would effectively shift the NLRB to a prounion majority. Ever since the new Board took control, we’ve advised employers to brace for widespread rollbacks of gains they saw in the traditional labor area under the Trump administration (see “Changing of the guard: NLRB precedent under Biden administration” in our April 2021 issue). In that regard, Abruzzo expressly warned employers she intends to return to the prounion agenda seen during the Obama years.

NLRB analysis of employer handbooks

One of the more controversial shifts by President Barack Obama’s NLRB was its attack on employers’ facially neutral workplace rules. For example, in Chipotle Services LLC, the Board used its 2004 precedent in Lutheran Heritage to invalidate employer rules directing employees to delete social media posts about their wages or other terms or conditions of employment.

The Obama NLRB concluded the employer’s facially neutral workplace rules violated the National Labor Relations Act (NLRA) if an employee could “reasonably construe” them to prohibit the exercise of their NLRA rights (also known as “Section 7 activity”). Under the new standard, the Board focused on a showing of one of the following to invalidate the rules: