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The Labor Law Insider: The Biden Administration - Expected Changes at the NLRB (Part II)


As we discussed in Part I of our Labor Law Insider podcast series, the National Labor Relations Board (Board) policy, personnel and decisions reflect changes in administrations, especially on topics of importance to the administration. One of the Biden administration’s primary priorities is to support and strengthen the labor movement and unions, including employees’ rights to organize and to collectively bargain. Under President Trump’s administration, the Board reversed Obama-era Board decisions that expanded the interpretation of employees’ right to engage in protected concerted activity. The Trump-era Board also interpreted the National Labor Relations Act (NLRA) protections narrowly and with less tolerance for aggressive conduct by employees—an approach that favored management. With a change in the administration and Board members, a similarly significant shift—this time favoring employees and unions—will occur under the Biden administration.

The January 4, 2021, dissent of then member (now Chair) Lauren McFerran in Medic Ambulance Services, Inc. suggests the scope of changes employers can expect to see as the  Board revisits decisions and guidance issued under the previous administration. Her opinion suggests that handbook policies prohibiting certain disruptive behavior may be under scrutiny as illegally restraining employee’s rights to engage in concerted activity. In Medic Ambulance Services, Inc., the NLRB evaluated workplace rules under the Boeing framework. McFerran described the Boeing framework as a “flawed” approach that permits adoption of “broad” work rules that infringe employee rights. Taking his cues from Chair McFerran, on February 1, 2021, NLRB Acting General Counsel (GC) Peter Sung Ohr rescinded 10 GC memoranda issued by his predecessor, including GC Memorandum 18-04, Guidance on Handbook Rules Post-Boeing. Such actions signal an aggressive shift in policy.

In Part II of the Labor Law Insider series, attorneys Tom Godar, Rufino Gaytán and Kat Pearlstone will discuss the impact of this impending policy shift on employer policies and workplace rules regarding: 1) employee access to IT systems for nonwork-related communications; 2) facially neutral workplace rules that negatively impact protected concerted activity; 3) confidentiality obligations during internal investigations; and 4) limitations on abusive workplace conduct.

Join us to listen to the second episode in our series, “The Biden Administration: Expected Changes at the NLRB.” In addition to discussing these potential policy changes at the Board, Tom, Kat and Rufino offer potential strategies for employers to proactively address the expected changes. For an overview of our second episode, you can review the summary of the discussion below.


View Transcript.

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Key NLRB decisions and expected changes

  1. Union access to employer IT systems

Current precedent: In Caesars Entertainment the Board held that employees do not have a statutory right to use employers’ email and other IT resources to engage in nonwork-related communications. Rather, employers have the right to control the use of their IT systems and may restrict their use to business purposes, so long as they do so in a nondiscriminatory manner.

Expected change: A return to Purple Communications is anticipated, which held that work rules prohibiting employee email use for union activity were presumptively invalid under Section 7 of the NLRA.

Who would be affected: Because Section 7 applies to all workforces, unionized and nonunionized, this potential change affects all U.S. employers.

Potential strategies: Employers can review their IT policies for rules that could be construed as prohibiting employee use of email and other IT resources for union activity. Even if employers do not revert to the Purple Communications standard, they can reassess which of their employees have a business need to access their email and IT systems, and deny access to those who do not.

  1. Facially neutral workplace rules

Current precedent: The Boeing Co. created a balancing test to weigh a facially neutral workplace rule’s “potential impact on NLRA rights” with the employer’s “legitimate justifications” for the rule. Under this test, the GC must establish that a reasonable employee would interpret the rule as interfering with his/her exercise of Section 7 rights. If the GC meets this burden, then the Board applies the balancing test.

Expected change: A return to the Lutheran Heritage Village-Livonia “reasonably construe” analysis is anticipated, under which a facially neutral workplace rule is deemed unlawful if it could be “reasonably construed” by an employee to prohibit the exercise of Section 7 rights.

Who would be affected: Because Section 7 applies to all workforces, unionized and nonunionized, this change will impact all U.S. employers.

Potential strategies: Employers can review their employee handbooks for workplace rules that could be construed as restricting protected concerted activity, with a focus on rules related to social media, off-work conduct, break time conduct, and rules prohibiting or requiring certain conduct (e.g., “negative attitudes” or “work harmoniously with each other”).

  1. Internal investigations: employee confidentiality obligations

Current precedent: In Apogee Retail the Board held that a rule requiring employees to maintain confidentiality while the employer conducts disciplinary investigations is presumptively lawful. Confidentiality rules that lack a time limitation require additional scrutiny.

Expected change: A return to Banner Estrella Medical Center is anticipated, which required employers to determine, on a case-by-case basis, whether a confidentiality obligation was legitimate and substantially justified such that it outweighed the infringement on the exercise of an employee’s Section 7 rights.

Who would be affected: Because Section 7 applies to all workforces, unionized and nonunionized, this change will impact all U.S. employers.

Potential strategies: Employers can review confidentiality rules and consider adding language stating that confidentiality obligations will be addressed on a case-by-case basis. In any event, the current policy should limit the confidentiality obligation to the duration of the investigation.

  1. Abusive workplace conduct

Current precedent: In General Motors the Board adopted a single, uniform standard for determining when an employer can discipline an employee engaged in abusive or offensive conduct in connection with protected concerted activity. Under General Motors, the Board applies the burden shifting Wright Line analysis to determine whether an employer based an adverse employment decision on the employee’s protected concerted activity.

Expected change: The Board will likely implement a more employee-friendly standard with a higher tolerance for offensive conduct related to protected concerted activity.

Who would be affected: Because Section 7 applies to all workforces, unionized and nonunionized, this change will impact all employers in the United States.

Potential strategies: Employers should monitor Board decisions and prepare to adapt to the new standard, should one be implemented. If an employee-friendly change becomes reality, employers may find themselves, for example, having to choose between: 1) disciplining an employee who made racial slurs against a co-worker in the context of a heated discussion about their wages or 2) allowing such conduct because it may be protected under the NLRA. Employers who choose the first option to comply with nondiscrimination obligations may violate the NLRA, while those who choose the second option may face a workplace harassment claim. Ultimately, the “right” decision may be the one with the least financial exposure.

What this means for employers

Employers who stay abreast of the expected shifts in policy and corresponding changes in labor relations law can implement proactive policies and strategies that allow business operations to endure the ever-changing whims of the Board. Some of those strategies require specific actions, such as limiting email access to those employees whose jobs require it. Other strategies require broad-based application, such as revising workplace rules to address specific (as opposed to general) conduct or practices considered disruptive to business operations.

Contact us

The Husch Blackwell’s Labor & Employment team can help negotiate the significant changes in labor law that are expected to occur. Contact Tom Godar, Rufino Gaytán, Kat Pearlstone or your Husch Blackwell attorney.

Tracey Oakes O’Brien, Legal Content and Knowledge Manager, is a co-author of this content.


Thomas P. Godar

Of Counsel

Rufino Gaytán III

Senior Counsel

Relevant Files

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