Two years ago, in a memo issued by the National Labor Relations Board (NLRB), the agency’s general counsel signaled that one of the Board’s main priorities would be to scrutinize whether certain workplace policies unlawfully infringed on employees’ rights to engage in protected activity under Section 7 of the National Labor Relations Act (NLRA).
Common examples of protected activity include organizing and joining a union, as well as discussing the terms and conditions of one’s employment. On August 2, the Board made good on that promise, reversing the more employer-friendly standard that had been in place since 2017 and adopting a new standard that potentially calls into question the lawfulness of many employer policies.
The recent decision in Stericycle, Inc. and Teamsters Local 628, which will be applied retroactively, potentially affects all workplaces, unionized or not, and will require employers to review their existing work rules, policies, and procedures to ensure compliance with the new standard.
Stericycle overruled prior standards regarding a categorical approach to work rules, under which certain types of rules were always considered lawful. It also overruled prior standards that permitted employers to adopt overbroad work rules that chilled employees’ exercise of their Section 7 NLRA rights.
Under the new standard, the NLRB considered whether an employee “would reasonably construe” the work rule or policy in question as chilling protected conduct. Work rules and policies are to be interpreted from the perspective of an employee who could potentially engage in protected Section 7 activity. If an employee could reasonably interpret an employer’s policy to be coercive and chill the desire to discuss the terms and conditions of employment (even if there’s also a reasonable, noncoercive interpretation), the employer must show the policy is justified.
To avoid a violation, employers must now show that workplace conduct rules are narrowly tailored to advance a legitimate and substantial business interest and that it isn’t possible to have a more limited rule.
The NLRB stated that it will look at future policies on a “case-by-case” basis and examine the specific language of a particular rule and the employer interest invoked to justify them. In making its case-by-case analysis, the Board will examine:
Importantly, the NLRB stated this new standard will be applied retroactively. This means all employers should review their employee handbooks and policies now to make sure that they comply with the NLRB’s Stericycle decision.
Certain handbook provisions, particularly those related to confidentiality, social media, disciplinary rules, workplace civility rules, loitering rules, restrictions on recording in the workplace, and NLRA disclaimers, need to be reviewed and possibly revised.
Kristin Simpsen is an attorney in the Oklahoma City, Oklahoma, office of McAfee & Taft. She can be reached at kristin.simpsen@mcafeetaft.com.
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