National Labor Relations Board Overturns Key Obama-era Rulings

The National Labor Relations Board (NLRB), and its recent Republican majority, has begun the long-anticipated overturning of Obama-era rulings and decisions. For employers, this means a return to more employer-friendly NLRB policies with respect to:

  • Joint employer status: The controversial Browning-Ferris decision of 2015 held that employers and staffing agencies could be joint employers based on indirect control over employment. The NLRB ruling in Hy-Brand returns to the “direct and immediate” control standard to find joint employer status.
  • Employee handbook policies: Under the Lutheran Heritage standard, a company policy was illegal if employees could “reasonably construe” the policy to interfere with the employee’s right to engage in protected, concerted activity. This standard was interpreted to invalidate various neutral employer policies, most notably those relating to employee use of social media and electronic communications in the workplace. With The Boeing Company case, the NLRB established a new test: the impact of a rule on employees’ rights to engage in protected, concerted activity must be balanced with the employer’s legitimate business interest in having such a rule.
  • Employer’s duty to bargain with union: The NLRB decision in Raytheon reverses du Pont, a 2016 decision which required employers to bargain over unilateral changes to any employment conditions, as a mandatory subject of bargaining, even if similar changes were made in the past.

For details, see the white paper by ES&A director Trisha Gibo