August 16, 2019
Despite the National Labor Relations Board's recent relaxing of restrictions on workplace policies governing employee conduct—ranging from confidentiality mandates to restrictions on social media use—NLRB judges have ruled against those policies at substantially high rates over the last two years.
NLRB judges have rejected three of every four employer rules they have reviewed, according to a Bloomberg Law analysis of 34 Board decisions involving 77 rules. Administrative law judges (ALJs) rejected 16 of the 17 confidentiality rules they reviewed since December 2017, 4 of 5 regulations on social media, and 5 out of 5 news media policies. Civility rules, however, have fared better: judges approved 5 out of 6 such policies they have reviewed.
Rules rarely pass scrutiny despite a new legal framework more favorable to employers. In 2017, the Republican majority NLRB in The Boeing Co. overturned precedent which had held that rules are unlawful if employees could “reasonably construe” that they would interfere with their labor rights. In Boeing, the Board crafted a new framework balancing employer interests and justifications for their rules against potential restrictions on employee rights. Nevertheless, ALJs applying the new Boeing standard have rejected rules at a rate of 75%.
Outlook: ALJ decisions can be appealed to the Board, and it is possible that the Board could overturn some of the decisions finding rules to be invalid and provide further clarification on how Boeing should be applied. Regardless, the high rate of rejection on the ALJ level should serve as a warning to employers that even under the more employer-friendly framework established in Boeing, thus far workplace rules and policies restricting employee conduct—and in particular rules concerning employee confidentiality, social media use, and mandatory arbitration—fail to meet the standard far more often than not.