Changes to Obama-era NLRB Regulations

With new administrations come often new regulations and policies regarding the workplace. This trend has occurred with many organizations in the federal government and is now happening in the National Labor Relations Board (NLRB). These new policies, while still in their infancy, indicate a repeal of Obama-era regulations and more protections for employers.

Under old standards, employers were often limited in what they could regulate in regards to personnel policies. These restrictions were because the previous NLRB “barred such policies and rules where they could be “reasonably construed” by employees to prohibit the exercise of their rights under the NLRA [National Labor Relations Act].”1)David J. Pryzbylski, Second Time’s the Charm? NLRB to Reconsider Lawfulness of Restaurant’s Work Rules Under New Standard, National Law Review (Feb. 1, 2018), https://www.natlawreview.com/article/second-time-s-charm-nlrb-to-reconsider-lawfulness-restaurant-s-work-rules-under-new. This standard was used frequently for “invalidating numerous handbook policies over the years from social media policies to rules limiting recording devices and more.”2)Id. However, now the NLRB “will evaluate two things: 1) the nature and extent of the potential impact on NLRA rights, and 2) legitimate justifications associated with the rule.”3)Id. This new policy thus seems to favor and protect the ability of employer to make changes and policies in the workplace, but this is not the only change the NLRB has implemented in recent months. For example, the NLRB “has restored the right of unionized employers to implement changes that are consistent with past practice (as long as the change does not materially vary in kind or degree from past changes).”4)Howard M. Bloom & Philip B. Rosen, NLRB Reverses Course, Permits Employer Unilateral Changes, National Law Review (Feb. 1, 2018), https://www.natlawreview.com/article/nlrb-reverses-course-permits-employer-unilateral-changes This protection exists “even if that practice developed under a management rights clause in a collective bargaining agreement that has expired, and whether or not the changes are discretionary.”5)Id. This new policy essentially “ensures that unionized employers retain the ability to run their businesses by making the same kinds of decisions they always have made, even when a labor contract is not in effect.”6)Id. The NLRB has also “made it tougher for workers to form so-called micro unions made up of small groups of a company’s employees, reversing an Obama-era decision that had been sharply criticized by companies.”7)Gene Marks, The NLRB took three big actions last week that employers will love, Wash. Post (Dec. 18, 2017), https://www.washingtonpost.com/news/on-small-business/wp/2017/12/18/the-nlrb-took-three-big-actions-last-week-that-employers-will-love/?utm_term=.6cb147b5a84f. Finally, the NLRB has also “changed an Obama-era definition of “employer” to one with “direct” control instead of “indirect.”’8)Id. While this may seem like a minor change, it affects “the potential liabilities that employers — particularly those using staffing agencies or with franchises or contractors — could face regarding labor violations, collective bargaining agreements, and other employee benefits.”9)Id.

Overall, all of these changes indicate that the NLRB is taking gradual but substantial steps to implement more protections for employers and their ability to regulate the workplace at the expense of workers. Whether or not this trend continues or what effect these changes will have on employees, remains to be seen.

References   [ + ]

1. David J. Pryzbylski, Second Time’s the Charm? NLRB to Reconsider Lawfulness of Restaurant’s Work Rules Under New Standard, National Law Review (Feb. 1, 2018), https://www.natlawreview.com/article/second-time-s-charm-nlrb-to-reconsider-lawfulness-restaurant-s-work-rules-under-new.
2, 3, 5, 6, 8, 9. Id.
4. Howard M. Bloom & Philip B. Rosen, NLRB Reverses Course, Permits Employer Unilateral Changes, National Law Review (Feb. 1, 2018), https://www.natlawreview.com/article/nlrb-reverses-course-permits-employer-unilateral-changes
7. Gene Marks, The NLRB took three big actions last week that employers will love, Wash. Post (Dec. 18, 2017), https://www.washingtonpost.com/news/on-small-business/wp/2017/12/18/the-nlrb-took-three-big-actions-last-week-that-employers-will-love/?utm_term=.6cb147b5a84f.
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