Over a 24-hour period in mid-December, the National Labor Relations Board turned back the clock by issuing four momentous decisions that will impact workplace law for years to come. By casting away controversial rulings from the Obama-era board, the newly constituted NLRB returned to reasonable standards that had existed for decades. After having survived eight years of a decidedly pro-union labor board that routinely pumped out opinions hostile to employers, employers across the country can breathe a sigh of relief knowing that balance is being restored to the labor and employment law landscape.

Joint Employment Doctrine Sees Rewrite

In 2015, the board renounced a 30-year-old joint-employer test by eliminating the requirement that the employer actually exercise control over workers in order to be considered a joint employer. Further, the board rejected the requirement that such control must be direct, immediate, and not limited and routine, holding instead that indirect control—such as control through an intermediary—would be sufficient to find joint employment. This controversial decision did seem to comport with reality and brought about a great deal of trouble in a modern business world replete with staffing arrangements, contingent workforces, franchise relationships and similar systems.

But on Dec. 14, the board announced that, in all future and pending cases, two or more entities will once again be deemed joint employers only if there is proof that one entity has exercised control over essential employment terms of another entity's employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine.

This decision is welcome news for employers. It should spare businesses from unwarranted claims of unfair labor practices, preventing workers and unions from bringing such claims against companies using a broad joint-employer theory. Employers should immediately review all of its third-party relationships with counsel to ensure that proper precautions are being taken to comply with this resurrected standard.

Reasonable Workplace Rules Are OK Again

Back in 2004, the NLRB created a standard for analyzing handbooks and employer policies, saying they would be held unlawful if employees could “reasonably construe” the rule to prevent them from exercising their rights. Although this case involved a workplace civility rule, the NLRB dramatically expanded its reach over the last eight years. Among other things, the Obama board struck down common employer policies covering confidentiality, employee interactions with third parties, employee use of logos and trademarks, and recording and photography in the workplace.

These decisions were all cast aside with another Dec. 14 ruling. From now on, when evaluating a facially neutral rule that could possibly be interpreted as having the potential to interfere with the exercise of NLRA rights, the board will evaluate the nature and extent of the potential impact on NLRA rights, and legitimate justifications associated with the rule. For example, the Board upheld a rule set in place by a military contractor that prohibited the use of cameras on its premises for security purposes.

Employers should immediately work with their employment lawyers to see if a rewrite to their handbooks and policies is in order. Over the past eight years, many lawyers had counseled their clients to redraft policies to adjust to the unreasonable demands laid down by the labor board; it is time for reasonableness to control once again.

Micro-Units Are Dead

In 2011, the board overturned 20 years of precedent by ruling that unions were allowed to organize a minority share of an employer's workforce—known as a “micro-unit.” This controversial ruling permitted organized labor to establish footholds in businesses where the majority of the employees might not have desired to be represented by a union.

But in Dec. 15, the new board once again cast aside a controversial decision and restored normalcy. It reinstated the previous standard whereby a desired bargaining unit would be examined through a traditional “community of interest” standard, ensuring that small, piecemeal groups of employees could not be picked out to form an inappropriate unit.

This is a big win for employers—unionized and nonunionized alike—who have fought to level the labor law playing field. As a result of this decision, employers' ability to reject fractured units has been restored. Unions will no longer be able to establish a bargaining unit by organizing a small group of employees in an effort to infiltrate the rest of the workforce. Employers should work with their counsel to ensure a union avoidance strategy is adjusted to conform to this standard.

Stability Restored After The Expiration Of Union Contracts

Finally, the board overturned a 2016 case that forced unionized employers, upon the expiration of a collective bargaining agreement, to provide advanced notice and an opportunity to bargain to with the union even where the employer continued to carry on with typical workplace practices exactly as it had done previously. That decision concluded that taking the same action would constitute a “change” that would trigger a new set of hoops for the employer to jump through, even if the employer's actions were permitted under the terms of a CBA that was no longer in effect.

On Dec. 15, the board reversed course and flatly rejected that case, finding that it contradicted Supreme Court precedent and decades of previous board law. The restored standard provides a welcome return to the pre-Obama board's precedents regarding bargaining obligations following the expiration of a CBA. Employers are once again permitted to take unilateral action in these circumstances, so long as the action is based on an established past practice. This provides clarity for employers who maintain consistent benefit plans, for example, across both their unionized and non-unionized work force that may require annual changes.

The bottom line is that the newly constituted NLRB is in the process of restoring much more predictability and neutrality in the federal labor laws.

Charles S. Caulkins is a partner in the Fort Lauderdale office of Fisher Phillips and practices employment law. Contact him at [email protected].