Sponsored Content

Trump National Labor Relations Board Rolls Back Obama-Era Rules

Posted: Updated:
© Ice Miller LLP © Ice Miller LLP
INDIANAPOLIS -

The National Labor Relations Board, which enforces the National Labor Relations Act (NLRA), a federal law that provides collective bargaining rights to most private-sector employees, closed out 2017 with a bang, rolling back a number of significant Obama-era policies and precedents. 

Specifically, in two decisions issued on Dec. 14, 2017, the Board addressed its standards regarding joint employment and employer handbook policies, two areas in which the Obama-era Board had significantly impacted unionized and non-unionized workplaces alike. 

Narrowing the Scope of Joint Employment

In Hy-Brand Industrial Contractors, Ltd., the Board reversed its controversial 2015 decision in Browning-Ferris, which had overruled longstanding precedent regarding the circumstances in which two companies would be found to be joint employers of the same unit of employees.  Industry groups view the Hy-Brand decision as a victory for employers, particularly those in the franchise industry.

For more information click here

Under Browning-Ferris, joint employment could be found even where one purported employer had only reserved the right to control the employees in question, and in fact, had never actually exercised direct control. As a result of this extremely broad view of joint employment, franchisors and general contractors became concerned they could be held responsible for the unfair labor practices of their franchisees or subcontractors and be required to bargain with employees they did not directly control.  Unsurprisingly, Browning-Ferris resulted in aggressive push-back from franchise and construction industry groups, including an appeal to the U.S. Court of Appeals for the District of Columbia Circuit.

With its decision in Hy-Brand, the Trump Board reversed course, returning to its pre-Browning-Ferris standard, under which joint employment will be found only if the purported joint employer has actually exercised control over the employees in question and the control is both direct and immediate.  Consequently, the D.C. Circuit has remanded the Browning-Ferris appeal to the Board, which has effectively been rendered moot by the Hy-Brand decision. 

A More Flexible Standard for Employer Policies

In Boeing Company, the Board overruled its longstanding Lutheran Heritage test for determining whether the mere maintenance of an employer handbook policy violates the NLRA and announced a new standard affording employers more discretion in setting workplace rules.

Although the Lutheran Heritage test was set in 2004 (during the George W. Bush administration), the Obama-era Board employed it with particular rigor, finding many common employer handbook policies, such as those requiring workplace civility, unlawful on their face. Under the Lutheran Heritage standard, the Board would find an employer policy unlawful if it could be "reasonably construed" by an employee to prohibit the exercise of NLRA rights, regardless of how or whether the policy was enforced.

The Trump Board adopted a more flexible approach in Boeing, balancing the nature and extent of the rule's potential impact on NLRA rights and the employer's legitimate justifications associated with the rule. Boeing describes three categories of employer policies, designating some as presumptively lawful and others as presumptively unlawful, with the remainder requiring case-by-case determinations. For example, workplace civility rules are presumptively lawful, unless they are actually applied to restrict protected activity, while a rule prohibiting discussion of wages and benefits would be presumptively unlawful.

In the case at hand, the Board applied its new standard to find Boeing's rule banning the use of cameras in its facilities (except in very limited circumstances) lawful. Specifically, the Board pointed to the rule's relatively minimal impact on NLRA rights and Boeing's legitimate concerns, which included national security. Notably, Obama-era Board policy severely limited the ability of employers to restrict employee use of recording devices, even where substantial justifications were present. 

More to Come, But When?

It is safe to say the Trump Board's efforts to re-shape Board policy and precedent are far from over. However, it may be some time before any additional significant decisions are issued. With Republican Board Chairman Philip Miscimarra's term expiring on Dec. 31, 2017, the five-member body is currently comprised of two Republicans and two Democrats. President Trump has yet to nominate a new member to fill the vacancy. Until that vacancy is filled with a third Republican member, the current Board is unlikely to overturn any significant precedents.

For more information, contact Emmanuel Boulukos, Christina Fugate or another member of Ice Miller’s Litigation or Labor and Employment Groups.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.

  • Perspectives

    • Mitigating Your Company’s Cybersecurity Risk

      Frequently, I encounter people who think that a software developer understands all languages and can “fix” anything tech related. While that may be true for a few, areas of expertise within tech evolve as rapidly as the technology itself. For instance, there was a time (not long ago) when operating in the cloud was revolutionary. Today, it is considered best practices for some or all of an organization to function within a cloud. Managed information technology began with...

    More

Subscribe

Name:
Company Name:
Email:
Confirm Email:
HTML
INside Edge
Morning Briefing
BigWigs & New Gigs
Life Sciences Indiana
Indiana Connections
INPower
Subscribe
Unsubscribe

Events



  • Most Popular Stories

    • (photo courtesy Dax Norton)

      Whitestown Tops Indiana's Fastest-Growing Communities

      The Indiana Business Research Center at the Indiana University Kelley School of Business says Whitestown in Boone County is Indiana's fastest-growing community for the eighth consecutive year. The center says the town's population nearly tripled, from 3,132 in 2010 to 8,627 last year. Westfield in Hamilton County is not far behind. Its population grew 5.2 percent in 2018, according to information reported by the U.S. Census Bureau. Other communities on the list include...

    • The Waterside project aims to transform 100-acres of the former GM Stamping Plant site. (photo courtesy of Ambrose Property Group)

      Ambrose, Glick Partner on Waterside

      Indianapolis-based Ambrose Property Group has announced a key partnership for the redevelopment of the former GM Stamping Plant in downtown Indianapolis. The commercial real estate firm is teaming up with the Gene B. Glick Co. to build and manage apartments as part of the $1.4 billion mixed-use redevelopment project. Ambrose says the partnership is also part of plans to catalyze "philanthropic and community-centric strategies to strengthen Indianapolis." The firm also...

    • (photo courtesy of the town of Plainfield)

      Plainfield Breaks Ground on Parking Structure

      The first piece of a redevelopment plan for downtown Plainfield is underway. City and community leaders have broken ground on the new Downtown Plainfield Parking Structure, which is expected to be complete in the late summer or early fall of 2020.

    • Despite Profit Increase, Shoe Carnival Predicts Store Closings

      Evansville-based Shoe Carnival Inc. (Nasdaq: SCVL) is reporting fiscal first quarter net income of $13 million, up from $8.2 million during the same period last year. Despite the increase, the company says it expects to close up to 25 stores throughout the fiscal year while adding three new locations.

    • Carmel Ranked Among Best Places to Live

      Carmel has been chosen as the 3rd best place to live in the U.S. according to MONEY.  The publication only looked at cities with a population of 50,000 or greater, and eliminated any place that had more than double the national crime rate, less than 85-percent of the state's median household income, or lack of ethnic diversity.  MONEY was able to pare the list down to 50 communities after delving into data concerning economic health, public education, cost of...