HR Hotline: How Does the NLRB’s New Handbook Policy Impact Employers?
Q: I understand the NLRB recently issued a decision regarding employer handbook policies, potentially making many policies unlawful. What did the NLRB decide, and what is the practical implication for my company’s handbook?
A: That’s correct: the National Labor Relations Board recently adopted a new legal standard for evaluating the legality of employer policies.
Many common handbook policies that the board had previously presumed to be legal – such as those prohibiting outside employment, or those requiring “civility” among co-workers – will now need to be re-evaluated under the new standard.
The National Labor Relations Act
The National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The law applies to both union and non-union workplaces.
Concerted activity is simply activity that an employee engages in with other employees, or on the authority of other employees, as opposed to activity done solely for oneself.
It includes things like talking with co-workers about wages or working conditions, circulating a petition asking for better hours, and joining with colleagues to talk to the media about workplace problems.
If an employer threatens employees with adverse consequences for engaging in this activity – such as prohibiting such conduct through a handbook policy – the employer may violate the NLRA.
On Aug. 2, 2023, the NLRB’s Stericycle decision significantly changed the way the board evaluates employer policies.
One of the most significant changes was its rescission of a standard that grouped employer policies into three categories: those that were always lawful, sometimes lawful (depending on the circumstances), and always unlawful, based on their interference with employee rights.
For example, over the course of several years, the board found the following types of rules to be categorically lawful:
- Rules against cameras and recording
- Confidentiality rules for proprietary information
- Social media restrictions
- Rules prohibiting outside employment
- Cell phone prohibitions
Under that prior rule, the board also found some types of rules to be categorically unlawful, such as those prohibiting communications with the media, or policies restricting discussions about wages.
The obvious benefit to this standard was its predictability; employers could implement certain policies without risking NLRA liability.
The board’s recent Stericycle decision rescinded that predictable rule, in favor of a case-by-case analysis of each employer policy.
Under the new rule, no employer policy (other than those that expressly restricted protected activity) is presumed lawful or unlawful.
Instead, the board adopted a new legal standard that requires a shifting burden of proof between the NLRB general counsel and the employer, in the following two steps:
- General counsel must prove that the rule “has a reasonable tendency to chill employees from exercising” their rights. In other words, viewing the policy from the perspective of an “economically dependent” employee who wants to avoid discipline, could that employee reasonably interpret the policy as discouraging them from exercising their rights?
- If the general counsel meets this burden, the employer may rebut the presumption of illegality by proving that (a) the rule advances a legitimate and substantial business interest; and (b) it cannot advance that interest with a more narrowly tailored rule.
Unfortunately, the board did not expand on the types of business interests that might qualify as “legitimate and substantial.”
Rather, it explained that in each case, the board would examine the specific wording of each rule, the industry and workplace context, and the employer interests and employee rights at issue.
For example, a “no cameras” rule may be upheld for a company dealing with highly classified information, but may be struck down where no such risks exist, but where employees wish to document unfair labor practices.
The board made no decision on the specific employer policies at issue in the Stericycle case.
It only articulated the new standard, and remanded the ultimate decisions to an administrative law judge.
So what does this mean for Connecticut employers?
It does not mean that your social media, confidentiality, and no-cameras rules are now invalid.
It does mean that you should take this opportunity to review your policies, ask yourself what interests they protect, and tailor them so they specifically advance your company’s business interests without unnecessarily restricting your employees’ rights to discuss and address working conditions.
Consulting with an employment attorney or HR consultant may be helpful.
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