The National Labor Relations Board (NLRB) is charged with enforcing the federal statute that governs employees’ right to organize, engage in collective bargaining, and engage in other related activities. Its General Counsel (GC) investigates alleged violations of both employees’ and employers’ rights. The members of the Board itself adjudicate complaints filed by employees, employers, and labor unions. The recent change in presidential administrations brought some changes to positions at the NLRB, including a new acting GC. At the beginning of February 2021, the acting GC issued a memorandum, GC 21-02, rescinding several memoranda from the previous administration. At least one of the rescinded memos could impact New Jersey employee claims and affect similar cases throughout the country. GC 18-04 interpreted a 2017 decision by the Board regarding complaints about employer handbook policies.
Section 7 of the National Labor Relations Act (NLRA), codified at 29 U.S.C. § 157, protects employees’ “right to self-organization,” to form or join labor unions, to engage in collective bargaining with their employers, “and to engage in other concerted activities” directed at these rights. Under § 8(a) of the NLRA, id. at § 158(a), employers may not restrain employees from exercising their rights under the statute, nor may they discriminate or retaliate against employees who engage in protected activities or complain about alleged violations.
The 2017 decision by the NLRB mentioned earlier dealt with a “facially neutral rule” in an employee handbook that allegedly violated workers’ rights under § 7. The rule in question restricted the use of cameras on the employer’s property. This included cell phones with cameras. An administrative law judge (ALJ) ruled that the rule violated § 8(a)(1) of the NLRA, finding that “employees ‘would reasonably construe’ the rule to prohibit Section 7 activity.”
The Board reversed the ALJ’s ruling. It identified three categories of employee handbook rules, based on the likelihood that a rule will violate the NLRA:
– Category 1: Rules that do not violate the NLRA, or that have a justification that outweighs “the potential adverse impact on protected rights.”
– Category 2: Rules that require “individualized scrutiny” to determine whether they infringe on protected rights, and whether any infringement of § 7 rights is justified.
– Category 3: Rules that clearly infringe on protected rights without justification.
GC 18-04 offered examples of each category of rules based on prior NLRB decisions, and directed regional offices on how to approach rules in each category when they are the subject of a complaint.
– Category 1 includes civility rules, rules against photography and recording, rules protecting confidential information, and rules against insubordination and other disruptive workplace behavior.
– Category 2 addresses overly-broad rules from Category 1, such as civility rules that prohibit criticism of the employer, and confidentiality rules that go beyond matters like trade secrets and other proprietary information.
– Category 3 rules are more overtly unlawful, such as confidentiality rules that specifically prohibit employees from discussing working conditions or wages.
The memorandum arguably made it more difficult for employees to argue that facially-neutral rules violate § 7. In rescinding the memorandum, the new GC stated that “it is no longer necessary.” GC 18-04 was issued not long after the 2017 NLRB ruling. The Board has issued numerous decisions interpreting it since then.
The employment lawyers at the Resnick Law Group are available to assist you if you have a dispute with an employer in New Jersey or New York. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation with a member of our team.