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Employment Handbook Redux

August 9, 2023

Don Walsh

The National Labor Relations Board (NLRB) has now taken an aggressive stance toward employment policies. This position applies to all employers, whether unionized or not.

Rejecting standards last enforced under the Trump administration and as predicted by various general counsel memos, the NLRB has established a new standard for scrutinizing workplace policies putting the employer’s concerns secondary. Relevant to non-union employers, Section 7 of the National Labor Relations Act guarantees employees “the right... to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In the Board's Stericycle, Inc., 372 NLRB No. 113 (2023) decision, the Board majority held that a presumption of unlawfulness exists if a policy “has a reasonable tendency to chill employees from exercising their Section 7 rights.” In describing this test, the Board explained that it is departing from an objective standard and its analysis is from the perspective of “the reasonable employee who is economically dependent on her employer and thus inclined to interpret an ambiguous rule to prohibit protected activity she would otherwise engage in.” This is a departure from previous analyses from the perspective of an “objectively reasonable employee.” The newest rule creates policy interpretations which are flexible and uncertain depending on the employees’ unique positions.

Employers are not completely unable to defend themselves and may rebut the presumption of unlawfulness by showing that “the rule advances a legitimate and substantial business interest, and that the employer is unable to advance that interest with a more narrowly tailored rule.” This decision also applies retroactively which means there is a possibility that work rules which were once lawful may no longer enjoy such protection.

The cautionary tale here is that employers must now review all workplace policies, including those in handbooks, and focus on any work rule regarding employee conduct, behavior and expectations. This includes rules regarding nondisclosure, confidentiality, civility, respect for coworkers, and interactions and discourse among employees in the workplace and on social media. Although employers may add preemptive disclaimers that their policies are not intended to chill National Labor Relations Act (NLRA) rights which could help in a close case, the Board has not yet considered the sufficiency of disclaimers under this new standard. If you need assistance, please contact any of RKW’s employment lawyers.

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