KemLaw

The impact of the new Republican administration continues to be felt strongly in employment and labor law.

In a newly issued ruling (early December) involving a Boeing Corporation “no camera” rule, the National Labor Relations Board overruled an Obama era ruling involving Lutheran Heritage. The Boeing “no camera” rule prohibited camera-enabled devices to capture images or video without a valid business need and an approved camera permit. In the NLRB’s original Heritage ruling, neutrally worded employer handbook rules were barred if they could be “reasonably construed” by an employee to prohibit the exercise of National Labor Relations Act rights.

In place of the Lutheran Heritage ruling, the new NLRB Board established a different test for employer handbook rules focusing on two elements: (i) the nature and extent of the potential impact of NLRB rights and (ii) the reasonable justifications for the rule.

The Board also announced that three categories of rules will be used by the Board to provide greater clarity and certainty to employees, employers, and unions going forward. As defined by the NLRB, the three new categories are as follows:

• “Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.  Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility.  Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.”
• “Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
•  “Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.  An example would be a rule that prohibits employees from discussing wages or benefits with one another.”

In the Boeing case, the NLRB concluded that the company had lawfully maintained their “no-camera” rule, arguing that while the rule potentially did affect the exercise of NLRA rights, the impact was comparatively slight and outweighed other important justifications, including national security concerns.

If you’re an employer and have questions about labor and employment law, please consider calling the attorneys at Kainen, Escalera & McHale in Connecticut. We do one thing and one thing only – we are an employer defense law firm – in fact, we are one of the largest employer defense law firms in the region. What’s more, each of our attorneys have over 20 years of experience in employment law and labor law matters and can provide your business with comprehensive legal counsel ranging from assistance with necessary preventive measures to trial advocacy. Please contact us if we can help you.

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