The Trump Impact on Labor and Employment Law: National Labor Relations Board

With President Trump in the White House, labor and employment law has changed and continues to change under the conservative administration. Specifically, President Trump’s administration has changed, altered, or reversed a number of former President Obama’s National Labor Relations Board (NLRB) appointees’ policies relating to labor and employment.

The biggest impact caused by President Trump has been his ability to appoint a new general counsel and members to the NLRB. The five-member Board now consists of three Republican and two Democrat appointees, marking the first time since 2007 that the NLRB has had a Republican majority.

In December of 2017, the NLRB, in a 3-2 decision, over-ruled the Browning-Ferris decision, which had broadened the definition and application of “joint employer.” The NLRB reinstated the traditional standard, which requires proof that the alleged joint employer actually exercised direct and immediate control over the essential terms and conditions of employment of the employee(s) in question.

The impact of reinstating the former standard of “joint employer” will help provide certainty for businesses who contract for services. These businesses can avoid the joint employer liability by ensuring that they do not control the essential terms and conditions of employment and that all hiring, firing, discipline, and direction of employees are left to the direct employer. There will continue to be gray areas, but precise contract drafting and observing separate spheres of authority within the workplace should allow contracting entities to minimize the risk of claims of joint employment under the National Labor Relations Act.

Another change that could take place under President Trump’s NLRB Board is the reversal of “quickie election” rule, which took effect in April of 2015 under the Obama Administration. This rule required elections to generally be conducted within 11 days after a certification petition was filed. The old rule had been generally 42 days after the filing of a certification petition. The Trump Board sought comment on the rule, and it appears likely that the rule will revert back to the old 42-day timeframe.

Workplace and employee handbook policies were also under scrutiny by the Obama NLRB Board. The Obama Board routinely struck down any handbook provision that even hinted at a possible restriction of employees exercising their National Labor Relations Act rights. Restrictions that did not pass the Obama Board’s scrutiny included policies that address confidentiality, insubordination, use of company logos, photograph ban, and conflict-of-interest rules.

In Boeing Company, 365 NLRB No. 154 (2017) the NLRB Board overruled the previous “reasonably construed” standard from the Obama Board and established a balancing test requiring it to weigh A) the nature and extent of the potential impact of the rule/policy on NLRA rights, and, B) legitimate employer justifications associated with the rule/policy. The Board identified three categories of the types of workplace rules, Category 1: Lawful Rules; Category 2: Rules requiring individualized scrutiny; and Category 3: Unlawful Rules. Policies requiring civility, rules prohibiting the use of employer trademarks/logos, rules prohibiting taking pictures/recording, and rules requiring confidentiality of workplace investigations fell into the always-lawful classification. Determining where other policies fall requires a balancing test to weigh the nature and extent of the potential impact of the policy on employees’ NLRA rights versus employers’ justifications for needing the policy.

As the NLRB Board continues to review policies from the Obama Administration and review cases, changes in employment law will continue. For questions regarding this article or a labor and employment question contact the author, Anthony M. Stites at (260) 423-8860 or at ams@barrettlaw.com or a member of Barrett McNagny’s labor and employment group.