Among other things, the NLRA protects employees' rights to discuss the terms and conditions of their employment. For example, employees are protected if they discuss their wages with each other. Under the NLRB’s former standard, a workplace rule was found to be in violation if the rule would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights.
In place of the “reasonably construe” standard, the Board established a new test: when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule. The Board also announced that, in the future, three categories of rules will be used to provide greater clarity and certainty to employees, employers, and unions.
Applying the new standard, the Board concluded that Boeing lawfully maintained a no-camera rule that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit. The Board majority reasoned that the rule potentially affected the exercise of NLRA rights, but that the impact was comparatively slight and outweighed by important justifications, including national security concerns. Many of the employee handbooks that our office reviews or drafts contain a similar policy prohibiting nonconsensual recording in the workplace.