As we previously reported, the National Labor Relations Board (the Board) invited public comment in January on whether it should overrule its current standard for determining the lawfulness of employee handbook policies and work rules. That standard – which applies in both union and nonunion workplaces – was adopted by the Board during the Trump administration in Boeing Co., 365 NLRB No. 154 (2017). In general, the Boeing standard balances a challenged rule’s impact on employee rights against the employer’s legitimate justifications for adopting the rule. Once this balancing analysis is complete, the Board places a challenged rule into one of three categories: (1) those that are always lawful to maintain, (2) those that are always unlawful to maintain and (3) those that must be analyzed on a case-by-case basis.

The due date for submitting briefs to the Board on this hotly contested issue expired last week, on March 7. As expected, current NLRB General Counsel Jennifer Abruzzo filed a brief urging the Board to reject the Boeing standard and to return to the prior, Obama-era test for evaluating work rules and employment policies. That standard, referred to as the “Lutheran Heritage” standard after the name of the case in which it was adopted, gave little consideration to an employer’s justification for adopting a facially neutral rule or policy. Instead, the Board focused on whether the rule might be “reasonably construed” by employees to restrict their right to engage in activity protected under the National Labor Relations Act (NLRA). If so, challenged rules and policies typically were held to be unlawful.

Application of the Lutheran Heritage standard resulted in a number of surprising decisions that ignored the practical and real-life circumstances of a workplace. For example, in Hills & Dales General Hospital, 360 NLRB 611 (2014), the Board held that a rule requiring employees to represent the employer “in a positive and professional manner at every opportunity” was overly broad and unlawfully ambiguous. In T-Mobile USA, Inc., 363 NLRB No. 171 (2016), the Board found that an employer violated the NLRA by maintaining a policy that required employees “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships.” In The Roomstore, 357 NLRB 1690 (2011), the Board found that a rule prohibiting “[a]ny type of negative energy or attitudes” violated the NLRA. Applying the Lutheran Heritage standard, the Board found in each of these cases that employees might reasonably construe the challenged work rule to apply to activity protected under the NLRA, with little regard for the employer’s motives for maintaining such policies.

As troubling as these decisions are, a return to the Lutheran Heritage standard under the current Board may be even worse for employers. As noted above, the Lutheran Heritage standard focused on whether employees might “reasonably construe” a challenged rule to restrict their right to engage in protected activity under the NLRA. If General Counsel Abruzzo has her way, the boundaries of what constitutes NLRA-protected activity will be greatly expanded in the next few years to encompass political advocacy, social justice and a wide array of other such issues. The expansion of NLRA protections to issues that have historically been viewed as unrelated to the workplace would render the Lutheran Heritage standard even more unpredictable.Takeaway: While the Board is not projected to issue its revised work-rule test for several months, union and nonunion employers alike should begin preparing for an unfavorable change in the law by reviewing their current work rules and handbooks.