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

    • Take Time to Face Reality

      When is the last time that you as a business owner truly stopped for 30 minutes or an hour and truly took some quiet time to reflect on your business? Like most owners, it’s probably been quite some time. We all get busy doing things, working hard, taking care of customers, running the business. But if we don’t take some time each day, week, month or quarter to slow down, we are setting ourselves up for failure. Business leaders and owners need the time to slow down to...

    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

    • (Image provided by the Capital Improvement Board.)

      Indy Alters Plans for Downtown Hotels

      The city of Indianapolis has announced plans to change the framework for a major project in downtown Indy that has sparked controversy. The $120 million project, announced in October 2018, calls for an expansion of the Indiana Convention Center and two new hotels at Pan Am Plaza, which would add about 1,400 rooms. The project has drawn criticism from a group of hoteliers, who have expressed concern of a potential oversaturation in downtown Indy. Indianapolis Mayor Joe Hogsett issued...

    • How Elkhart Became The RV Capital of The World

      Today we all know Elkhart, Indiana as the RV Capital of the World. More than 80 percent of global RV production is based throughout the region. That means that if you see an RV rolling down the road anywhere in the world, chances are that it was built with the craftsmanship and dedication of Hoosiers.

    • Shelly Timmons

      IU Health Names New Leader of Neurosurgery

      The Indiana University School of Medicine and IU Health Physicians have named Shelly Timmons to lead the department of neurosurgery. She previously served at Penn State Health Milton S. Hershey Medical Center as vice chair for administration in the department of neurosurgery and director of neurotrauma.  

    • Elanco is headquartered in Greenfield.

      Elanco Finishes Deal on Pet Therapeutics Purchase

      Greenfield-based Elanco Animal Health Inc.(NYSE: ELAN) completed its purchase Thursday of Aratana Therapeutics (Nasdaq: PETX), a pet therapeutics company located near Kansas City. As Inside INdiana Business first reported Tuesday Aratana shareholders voted overwhelmingly in favor of the $245 million deal. 

    • On-Air

      Find out when and where you can watch and listen to our reports.