We’ve been talking for months now about when the National Labor Relations Board would finally begin rolling back the Obama-Era Board’s expansive policies, and last week, the Board’s new General Counsel levelled his sights on many of those policies, albeit in a non-binding memorandum. Well, this Thursday, the Board overturned not one, but two of those policies.
In successively issued decisions, the NLRB — including its new Trump-appointed members — issued decisions overturning two hallmark expansions of the Obama-Era Board: the Browning-Ferris test for determining joint employer status and the Lutheran Heritage Village standard for scrutinizing employee handbooks. As Board watchers will know, Lutheran Heritage set the stage for an uptick in unfair labor practice charges for unlawful handbook policies and left some companies wondering whether it was even worth writing down their policies in the first place. In Lutheran Heritage Village, the Obama Board created a test that asked whether an employee could reasonably construe a policy as interfering with the employee’s rights under the Act. In applying this test, the Board found many common policies, such as those prohibiting threatening behavior toward other employees, were violations of the NLRA. The new Board now returns us to the test that balances between the potential impact on employee rights under the NLRA and the company’s legitimate reasons for the policy. The increased ability for companies to craft policies prohibiting poor behavior in the workplace will also be welcome to many companies in light of recent national attention on men behaving badly in the workplace.
The Browning-Ferris decision created similar confusion as to who might be considered an employer in industries where multiple companies are involved in an enterprise or project. Under Browning-Ferris, the new Board majority points out, it was difficult for companies to plan in advance for whether they would be viewed as joint employers. Now the test has returned to the issue of whether one entity jointly controls the other entity’s employees to such an extent that it has a “direct and immediate” impact on those employees’ employment.
We will have more to say in the coming weeks about the effects of these decisions. For now, however, we note that, combined with the General Counsel’s memorandum last week, which adjusted that office’s enforcement priorities, these decisions are welcome news for companies — both with and without unionized workforces.