The National Labor Relations Board indicated in January that it may reconsider its legal standard for assessing whether employer work rules violate the National Labor Relations Act, and invited amicus briefs on the subject. Several business groups, including the Chamber of Commerce of the United States of America, filed briefs on March 8, 2022 urging the Board to maintain its existing standard under The Boeing Co., 365 NLRB No. 154 (2017).
Under Boeing, the Board assesses whether work rules are lawful to maintain by analyzing the nature and extent or the rule’s potential impact on employees’ rights, and the employer’s legitimate business justifications for the rule. Based on this analysis, the Board uses the Boeing standard to place rules in one of three categories – Category 1, 2 or 3 – depending on whether they are always lawful to maintain, require case-by-case analysis, or are always unlawful to maintain.
Business groups, including the Chamber of Commerce, urged the Board to uphold Boeing because it provides predictability and certainty for employers when drafting work rules, and it properly considers employer interests in maintaining order and discipline at work. Under the Board’s old work rules standard, known as the Lutheran Heritage standard, commonplace work rules were often struck down as unlawful because the Board found that employees could read them to effect employee rights under the Act. The Board also reached inconsistent conclusions about nearly identical work rules under Lutheran Heritage because of its subjective nature.
Hunton Andrews Kurth filed the amicus brief on behalf of the Chamber of Commerce. A copy of the brief can be found here.