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In the Obama administration, the National Labor Relations Board struck down a number of handbook policies, applying Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Under Lutheran, the board set out a test for when the rule of any employer—unionized or not—will violate the National Labor Relations Act (NLRA). This rule included examination of whether employees would reasonably construe the rule’s language to prohibit protected, concerted activity. The rule has been applied to strike down social media and confidentiality policies under the Obama board.

But Lutheran was overturned in late 2017 after Republicans assumed control of the board. Now that it has been overruled, employers are receiving more latitude with policies that are neutral on their face, such as confidentiality policies.