In recent years, the National Labor Relations Board (NLRB or Board) has issued numerous decisions invalidating a wide variety of employer workplace rules. Under President Trump, a reconstituted Board will likely tackle many of those same workplace rule issues and overturn the prior Board’s decisions.

Should the Board overturn prior workplace rule decisions, it might do so under a different analytical framework. Currently, under Lutheran Heritage Village, 343 NLRB 646 (2004), a facially neutral workplace rule is unlawful if (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to Section 7 activity; or (3) the rule has been applied to restrict the exercise of such activity. In a recent dissent, the now Acting Chairman of the NLRB, Philip Miscimarra, urged that the NLRB abandon that standard. William Beaumont Hosp., 363 NLRB No. 162 (2016) at *8 (Miscimarra, dissenting). Miscimarra opined that the Board should evaluate a facially neutral workplace rule by balancing (1) the potential adverse effect of the rule on National Labor Relations Act (NLRA) protected activity, and (2) the legitimate justifications an employer may have for maintaining the rule. Id. The facially neutral rule should be found invalid if, and only if, the adverse effect on Section 7 activity outweighs the employer’s justifications.

Regardless of the framework it chooses to apply, a Trump-appointed Board is likely to overrule the prior Board on the following workplace rule findings:

Access to Information

Purple Communications, 361 NLRB No. 126 (2014) – The Board held that if an employer provides employees with an email system, employees have a presumptive right to use it for organizing purposes during non-work time. Further, employers may only ban the nonbusiness use of corporate email if the employer could demonstrate “special circumstances” that “make the ban necessary to maintain production or discipline.” Id. at *6.

Civility/Professionalism

William Beaumont Hosp., 363 NLRB No. 162 (2016) – The Board held several of the employer’s professionalism rules invalid, including rules that prohibited (1) conduct that “impedes harmonious interactions and relationships. . .”; (2) “[v]erbal comments or physical gestures directed at others that exceed the bounds of fair criticism”; (3) “[n]egative or disparaging comments about the moral character of an employee or physician made to employees, physicians, patients, or visitors”; (4) behavior that is “counter to promoting teamwork.” Id. at *2, *6.

Class Actions/Arbitrations

D.R. Horton, Inc., 357 NLRB No. 184 (2012) – The Board found a mutual arbitration agreement invalid. The agreement required employees, as a condition of employment, to waive their rights to pursue class or collective actions involving employment-related claims in all forums, whether arbitral or judicial. The Board held that the employer’s rule violated the law because “collective efforts to redress workplace wrongs or improve workplace conditions are at the core of what Congress intended to protect by adopting the broad language of Section 7. Id. at *4.

Confidentiality During Investigations

Banner Health System, 362 NLRB No. 137 (2015) – In this matter, the employer’s policy called for managers to request employees who were not involved in a workplace investigation to not discuss the matter with their coworkers while the investigation was ongoing. The Board found that policy unlawful because “[employees have a Section 7 right to discuss discipline or ongoing disciplinary investigations involving themselves or coworkers,” and an employer may “restrict those discussions only where the employer shows that it has a legitimate and substantial justification that outweighs employees’ Section 7 rights.” Id. at *3.

Dress Code

Boch Imports, Inc., 362 NLRB No. 83 (2015) - The employer maintained a dress code policy stating “employees who have contact with the public may not wear pins, insignias, or other message clothing.” Noting that the Board’s interpretation is that “a rule that curtails employees’ Section 7 right to wear union insignia in the workplace, must be narrowly tailored to the special circumstances justifying maintenance of the rule,” the Board found the employer’s policy overly broad, and that the employer’s asserted interest in maintaining its public image was unavailing. Id. at *2.

Recording in the Workplace

Whole Foods Market Group, Inc., 363 NLRB No. 87 (2015) – The Board found unlawful the employer’s rules that prohibited employees from recording in the workplace without prior management approval, though the expressed purpose of the rules were to “encourage open communication” and to “eliminate a chilling effect on the expression of views that may exist when one person is concerned that his or her conversation is being secretly recorded.” The Board nonetheless held that photograph and audio or video recording in the workplace, as well as the posting of photographs and recordings on social media “are protected by Section 7 if employees are acting in concert for their mutual aid or protection and no overriding employer interest is present.” Id. at p. 3. The Board left open an employer’s ability to craft a rule prohibiting recording so long as it does not use “broad and unqualified language” and differentiate between recordings protected by Section 7, and those that are unprotected. Id. The Board further noted that “any rule that requires employees to secure permission from their employer as a precondition to engaging in protected activity on an employee’s free time and in non-work areas is unlawful.” Id.