It’s as predictable as the departure of hummingbirds and return of frosty mornings each autumn in Western Colorado. The National Labor Relations Board has once again changed the standards by which it determines whether or not workplace rules infringe on employees’ rights to engage in concerted activity to address the terms and condition of their employment.

In a ruling issued in August, the NLRB adopted a strict new legal standard for evaluating the legality of workplace rules under the National Labor Relations Act. Workplace rules have recently become a battleground as employers and NLRB debate whether rules maintain an employer’s legitimate business interests without chilling employees’ ability to voice concerns. Employers are left grappling with regularly changing standards for developing and enforcing their rules

So, how did we get here?

For several years, the validity of workplace rules was governed by the NLRB 2004 decision in Lutheran Heritage Village-Livonia. Under Lutheran Heritage, even a rule that didn’t explicitly restrict activity protected by Section 7 of the NLRA was illegal if employees would reasonably construe the language to prohibit that activity. The NLRB proceeded to issue several decisions that baffled employers. The board declared in 2014 a rule prohibiting “[d]iscourteous or inappropriate attitude or behavior to passengers, other employees or members of the public” was “sufficiently imprecise” it could cover any conflict among employees, including those related to working conditions. “Civility” rules were illegal because discussing discussions about workplace conditions could reasonably be expected to become contentious and uncivil. Notably, Lutheran Heritage didn’t require the NLRB to balance employee rights with even legitimate employer interests.

In 2017, the NLRB addressed what it perceived as inconsistent evaluation of workplace rules. In overturning Lutheran Heritage, the board ruled that when analyzing the legality of a rule that, when reasonably interpreted, would potentially interfere with the exercise of Section 7 rights, the board will evaluate the nature and extent of the potential effects on those rights and the employer’s legitimate justifications for the rule. The Boeing Co. ruling established three categories of workplace rules:

n Some rules are lawful because they don’t, when reasonably interpreted, interfere with worker rights or employer justifications outweigh the potential adverse effects. The policy of banning cameras in the workplace without a valid business need was held to be legal. Rules aimed at maintaining basic standards of civility in the workplace were deemed legal.

n Some rules warrant individualized scrutiny to determine whether they would prohibit or interfere with NLRA rights and, if so, whether any adverse effects on NLRA-protected conduct was outweighed by legitimate justifications.

n Rules that prohibit or limit employees’ NLRA rights without a sufficient employer interest were illegal. A rule prohibiting the discussion of wages was deemed illegal.

But in August, the NLRB overturned Boeing and brought back Lutheran Heritage with even greater restrictions on employers. The board will no longer evaluate whether a rule would prevent or hinder a reasonable employee from engaging in protected activities. The board will evaluate a rule from the “perspective of the economically dependent employee who contemplates engaging in Section 7 activity … .” Consequently, a workplace rule is now presumed unlawful if it has a “reasonable tendency” to chill employees from exercising their NLRA rights or otherwise has a coercive meaning regardless of the employer’s intent in establishing or maintaining the rule. “[E]even if a contrary, noncoercive interpretation of the rule is also ‘reasonable,’ the workplace rule is presumptively unlawful.”

The employer can defend its rule by proving the rule or policy “advances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule.” It’s no longer permissible to act merely reasonably. The employer must sort through any number of hypothetical workplace scenarios to determine its rules and policies offer the least restrictive alternative.

The types of rules that could be affected include those involving:

Social media restrictions.

Workplace civility requirements.

Confidentiality of workplace investigations.

Media contact policies.

Confidentiality, non-disparagement or non-disclosure policies.

Electronic communications and computer use policies.

Dress codes.

No camera or video policies, such as the policy found presumably legal in Boeing.

Open door policies.

Employers should review employee handbooks, policies and other rules to determine whether substantial business interests justify its rules and the rules in place are the least restrictive ways to further its legitimate business interests.

The Employers Council offers members resources on how to comply with these and other legal changes. Enterprise and consulting members may contact human resources professionals and attorneys directly to discuss legal obligations and best practices when reviewing or implementing workplace rules.