New NLRB Guidance on Employee Handbooks: Complying With New Rules After the Boeing Decision

Since the NLRB’s Dec. 14, 2017, decision in Boeing, employers have faced significant confusion about how the Board would evaluate workplace policies under the NLRA and how to place workplace rules into the three categories defined in the decision. On June 6, 2018, the general counsel of the NLRB published much-needed guidance on how the Boeing standard should be applied.

The Boeing decision is a significant departure from the prior standard for evaluating the lawfulness of workplace rules under Lutheran Heritage Village-Livonia, which turned on whether a given rule would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights. Instead, the Board promulgated a two-part test that balances a worker’s NLRA rights against the employer’s legitimate business justifications for the rule.

Boeing also set forth a categorizing system labeling workplace rules as either Category 1 (rules that are generally lawful to maintain), Category 2 (rules requiring individualized scrutiny), or Category 3 (rules that are unlawful to continue). Even with this framework, there remains a great deal of room for subjectivity and nuance when evaluating handbook rules under the Boeing standard.

Listen as our panel of experts discusses the Boeing decision, the NLRB’s 2018 guidance memo, and how to apply the new standard to workplace policies. Our panel will also shed light on how to best to evaluate, modify or justify handbook rules and procedures under the new test and rule-categorization system, and provide practical lessons for employers in maintaining compliant employee handbooks.

1. Overview of the Boeing decision and its resultant test for determining whether workplace policies violate the NLRA
2. Discussion of the NLRB’s 2018 guidance and clarification of Boeing
3. What to expect from the NLRB in applying the Boeing test to contested workplace rules
4. Practical guidance for employers on how to evaluate, modify, or justify handbook rules and policies in light of the new test and rule-categorization system

The panel will review these and other high priority topics:

• What is the Boeing standard for evaluating workplace policies?
• How is the NLRB applying the Boeing standard when reviewing workplace policies for lawfulness?
• What does Boeing mean for employers or their counsel when drafting and reviewing workplace policies?
• What is the practical application of the Boeing test and categories, and what can employers expect from the NLRB regarding enforcement?