The National Labor Relations Board (“NLRB”) recently adopted a new and employer welcomed standard for determining whether facially neutral workplace rules unlawfully interfere with the exercise of employee rights that may be protected by the National Labor Relations Act (“NLRA”).
Going forward, the NLRB will consider the following factors:
- the nature and extent of the potential impact on NLRA rights, and
- legitimate justifications associated with the rule.
Given the regulatory framework healthcare employers are subject to and the need for robust workplace rules related to confidentiality and security, employee conduct, and conflict of interest concerns, the new standard provides greater clarity to healthcare employers by giving appropriate weight to an employer’s legitimate justification for certain workplace rules. The NLRB articulated three categories of work rules to be analyzed under the NLRA going forward:
Category 1 will include rules that the NLRB designates as lawful to maintain, either because the rule does not prohibit or interfere with the exercise of NLRA rights; or the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules offered by the NLRB include “no-camera” workplace requirements and rules requiring employees to abide by basic standards of civility. Perhaps most importantly, the NLRB overruled past cases in which it held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.
Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
Category 3 will include rules that the NLRB will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example offered by the NLRB is a rule that prohibits employees from discussing wages or benefits with one another.
Healthcare employers should note that although the maintenance of particular rules may be lawful, application of such rules may violate the NLRA, so caution should still be exercised when disciplining or terminating an employee for violating a workplace rule that may both serve a legitimate employer interest and potentially interfere with the exercise of NLRA rights.