Labor Board Counsel Gives Employers More Leeway With Workplace Rules

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By Hassan A. Kanu

The labor board released guidance June 6 on how it will interpret whether employers’ workplace rules violate workers’ labor rights, shifting the presumption about ambiguous or broadly written rules in favor of businesses.

National Labor Relations Board field offices should “now note that ambiguities in rules are no longer interpreted against the drafter,” General Counsel Peter Robb wrote in a guidance memo to staffers. Generalized employment policies and provisions “should not be interpreted as banning all” conceivable worker activity protected by law, Robb said.

The memo comes after the NLRB’s Republican majority in December loosened controversial restrictions on facially neutral workplace policies. The board in that case ruled that Boeing Co. was permitted under federal labor law to ban workers from using devices to take photos at certain job sites.

The memo provides examples of rules that the board will presume lawful. That includes general civility rules banning offensive language and rude or socially unacceptable behavior, as well as “no photography” rules and insubordination restrictions that don’t infringe on workers’ rights to engage in concerted activity. Robb notes in the memo that a ban on mobile phones in the workplace may not pass muster under the National Labor Relations Act.

Unions and worker advocates have suggested the board’s new Republican majority could grant employers too much wiggle room, thereby allowing for rules that may confuse employees into self-censorship or otherwise avoid activity they have a right to engage in.

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