NLRB tweaks standards for evaluating whether your employee handbook policies are lawful

Blissbook now has the ability to provide law change alerts to customers! What follows is an alert we recently wrote on a topic that can affect all companies as it deals with how broadly many “work rules” are written.

Overview

On August 2, 2023, the National Labor Relations Board (NLRB) issued a decision (Stericycle Inc.) that reverses an earlier precedent (Boeing) that itself had modified an earlier decision (Lutheran Heritage Village-Livonia). Confused yet? Basically the NLRB said, “nevermind” to how they were operating for the past 6 years and moved back towards standards first established in 2004.

The NLRB said the primary problem with how they’re operating is that it permits employers to adopt overbroad work rules that chill employees’ rights under Section 7 of the National Labor Relations Act (the right to organize, form, or join a union).

Under the new standard, the General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If they can do so, then the rule is presumptively unlawful, even if a contrary, non-coercive interpretation of the rule is also reasonable. Employers may rebut this by proving that the rule advances a legitimate and substantial business interest, and that they are unable to advance that interest with a more narrowly tailored rule. If the employer successfully proves its defense, then the work rule will be found lawful to maintain.

In making this determination, the NLRB “will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity. Consistent with this perspective, the employer’s intent in maintaining a rule is immaterial. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden, even if a contrary, non-coercive interpretation of the rule is also reasonable.”

Related Links

• NLRB
• Ogletree Deakins
• Constangy
• Baker Sterchi
• CDF Labor Law

Action Items

There are many unknowns about how this will play out. Guidance for how to maintain “bulletproof” policies & rules in light of these changes is incomplete, at best. Below, we’ll summarize the best advice we’ve found. Now would be a good time to review all of your policies with your legal counsel.

Overall, if your employee population is unionized or may be making efforts to be unionized, you should review all of your policies to ensure they aren’t overly broad. You may want to eliminate certain rules that you cannot narrow or that cannot be interpreted in any way as interfering with employee rights under the NLRA.

1) Review your policies

Review all of the policies in your handbook, but especially your Social Media & Solicitation and Distribution policies:

• Ensure a policy/rule isn’t overly broad. Any rule that restricts employee behavior should advance a legitimate and substantial business interest and should not expand beyond that. Imagine having to defend, in court, that a rule/policy is as narrow as possible.
• Ensure they don’t interfere with — or might reasonably be interpreted by employees as interfering with — employees’ rights under the NLRA. This means you cannot have a policy that restricts an employee’s right to communicate on their own (or other employees’) behalf concerning terms and conditions of their employment.
• Ensure that any policy or rule that could potentially be viewed as limiting an employee’s right to participate in safeguarded activities has legitimate business justifications.
  • Avoid rules restricting employees from criticizing your company at large.
  • Avoid rules restricting employees from sharing content or videos about co-workers or the company at large.
    • You can restrict sharing of content about competitors, vendors, or customers.
    • You can restrict sharing of content about co-workers if you narrow it to violations of your harassment, discrimination, bullying, retaliation, or other related policies. Include a savings clause (see below).
  • You can restrict sharing of audio/video or photos of your workplaces, but you should include a savings clause (see below).
• Consider adding savings clauses throughout your Social Media policy or to other policies, as needed. Although a general savings clause at the end of an unlawful policy does not turn it into a lawful one, it is beneficial next to any specific prohibited behavior. For example, when you remind employees in your Social Media policy about not violating your discrimination, harassment, or confidential information policies, you may also want to say something like, “This rule does not prohibit activities protected by Section 7 of the National Labor Relations Act, such as your rights to discuss terms and conditions of employment.”
• Consider adding additional justification for certain rules to provide an explanation of how the rule serves your company’s best interests. For example, if you prohibit “obscenity, profanity, and abusive language”, explain that you do so because (A) not everyone is comfortable with that language and you want a workplace environment where everyone’s comfortable and free from harassment; and (B) you sometimes have customers or other important visitors at your workplace and you want to promote a professional workplace environment.
  • Note: It’s unknown whether the NLRB will actually “carefully consider” this justification.
• Consider adding “except in regards to information related to the terms and conditions of employment.” to your Solicitation and Distribution policy if you have rules prohibiting solicitation and distribution.

2) Be careful when implementing discipline or termination decisions

Be careful, when implementing discipline or termination decisions, to recognize and analyze whether the decision can be challenged as being based on a rule or policy that will be interpreted as an unlawful restriction on Section 7 rights under the new standard.