Employer Handbook Rules Under Scrutiny at NLRB

October 22, 2021

A new complaint filed against Apple Inc. offers the new Democratic majority at the NLRB a chance to return to a strict approach towards employer handbooks and workplace rules and policies last seen during the Obama-era Board. Notably, a more restrictive handbook standard would apply to all employers, not just those with unionized workplaces. 

The complaint alleges that various confidentiality rules and policies in Apple’s employee handbook unlawfully interfere with workers’ rights to communicate with each other and engage in collective action.  The policies at issue include restrictions on disclosure of “business information,” interactions with the media, discussions of co-worker compensation, and social media posting.  The complaint also alleges that a statement by Apple CEO Tim Cook that “people who leak confidential information do not belong here” violated the NLRA.

The case provides an opportunity for the current Board to return to the Obama Board's excessive scrutiny of employer workplace rules and policies.  In 2017, the Trump Board broke from previous precedent under the Obama Board's approach and established a new standard—the Boeing standard (named for the case in which it was set forth)—for evaluating employer workplace rules and policies that weighed potential negative impact on employees’ rights against legitimate business rationales.

NLRB General Counsel Abruzzo specifically targeted the Boeing standard as one of many precedents she is seeking to overturn in a memo published in September.  The Board is likely to return to a restrictive approach towards employer workplace rules and policies, in which if the rule or policy can be construed by an employee to in any way “chill” collective action or communication between employees regarding workplace issues, it is deemed presumptively unlawful.  This more restrictive standard would apply to all employers, not just those with unionized workplaces

Meanwhile, the White House Labor Task Force is expected to soon issue its report of recommendations for uses of executive and regulatory authority to increase union density in the country.  Such recommendations are likely to include executive orders imposing neutrality requirements and other pro-union policies on federal contractors, among other actions that will not require congressional consent.  Reports have indicated that the report contains over fifty different recommendations, and is expected within the coming weeks. 

Outlook:  As the new Democratic majority at the NLRB begins to hear cases and issue decisions, employers can expect so see a flood of pro-union, anti-employer changes in labor law precedent, with the above employee handbook case as merely one example.  The slew of executive branch actions stemming from the White House Labor Task Force report will lead to significant employment and labor law compliance challenges in the near future.