Under the previous administration, the National Labor Relations Board (NLRB) took a restrictive view of standard personnel policies. Everything from dress code policies to electronic devices in the workplace to confidentiality requirements to respectful communication expectations and more were under scrutiny by the agency — and often struck down as being unlawful under the National Labor Relations Act (NLRA).

That may be about to change. Last week, the NLRB's General Counsel, Crystal Carey, issued a memo indicating the agency may be taking a more relaxed view on these types of policies. Carey noted in the memo:

“When reviewing rules related cases, regions should focus on an evaluation of rules that are alleged to present clear, facial violations — such as outright bans on discussing wages among employees. In this context, it is essential that regions assess each alleged unlawful rule within the framework of the charged party’s industry and consider any legitimate business justifications provided. In this same vein, rules should not be sustained simply due to vagueness; rather, a nuanced approach must be applied, ensuring that only those rules with obvious, unjustifiable restrictions are pursued further.”

Additionally, given the NLRB now has a quorum under the current administration, we may see a return to a more employer-friendly standard when it comes to evaluations of whether work rules violate labor law. Under a standard that used to be in effect, the agency used to, among other things, take into account the business rationale a company had for implementing a work rule. At present, that is not the case.

This could be welcome news for employers. It should be noted, however, that guidance from the NLRB General Counsel is not binding precedent. The more restrictive standard will remain in place until if and when the newly constituted NLRB issues a ruling in a case declaring a new framework for evaluating policies is in effect. So while there may be room for optimism, employers should tread carefully when evaluating changing or implementing policies that may implicate issues under the NLRA.