"NLRB Update: What Every Employer Needs to Know," Employee Relations Law Journal
In an article published in the Spring 2019 Issue of Employee Relations Law Journal, Kofi Semenya discusses three new categories of work rules and policies that the National Labor Relations Board (NLRB) established, creating a better understanding of cases where there are one or more facially neutral policies at hand and could potentially interfere with Section 7 rights.
Section 7 provides employees “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection….” That said, employees are only protected if they are engaged in “concerted protected activity.”
In December 2017, the NLRB issued The Boeing Company decision that moved toward a more employer-friendly standard than in the past. Semenya outlines the decision, “that in cases where there are one or more facially neutral policies at issue, and when reasonably interpreted would potentially interfere with Section 7 rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) the employer’s legitimate justifications associated with the policy or rule.”
Additionally, Semenya elaborates on the three new categories of work rules and policies that the NLRB established.