How to Review Employee Handbook Policies Under New NLRB Scrutiny
October 27, 2023
Employers are advised to review certain employee handbook policies to ensure they will not be found to violate the National Labor Relations Act (NLRA). As we have reported, the pro-labor National Labor Relations Board (NLRB) is issuing new Board decisions that are decidedly pro-labor and challenge some long standing employer policies as a violation of a worker’s right to engage in protected concerted activity.
A partial list of the most common policies reviewed that could be found problematic by the NLRB are:
- Social media
- Outside employment
- Investigation confidentiality
- Audio and visual recording rules
- Email use
- Distribution and solicitation
- Workplace conduct
- Bulletin board access
For the last several years, employer handbook policies were reviewed under a NLRB ruling called Boeing. That case outlined more balanced criteria to determine a policy’s “fairness” under the law by first considering the business purpose of the policy. The Boeing case categorized employer policies as:
- Rules that are per se illegal because they directly affect an employee’s engagement in activity that involves wages, benefits, and terms and conditions of employment. For example, this would be a rule against discussing wages with other employees or outside parties.
- On the opposite side of the Boeing rule spectrum would be rules that have a strong basis in business necessity. This might be an investigation confidentiality rule. These policies would normally be permissible if the business purpose for it was at least as necessary as the rule’s potential to interfere with worker rights under the NLRB.
- The third realm of employer policies where the Boeing case criteria would be applied to determine if it was legal would be those rules that have both a business necessity but may also be considered to curtail or be understood to impede a worker’s rights to engage in protected concerted activity. This might be a non-disparagement policy for example. The bigger idea was Boeing allowed for a balancing test between employer needs and employee rights.
As of August, the now pro-labor NLRB specified a new rule for reviewing an employer handbook policy that would narrow how the policy could be interpreted as to whether it caused a worker to refrain from an activity that they have a right to engage in without fear of reprisal. The NLRB handed down a new decision called Stericycle. Under the Stericycle decision the new standard of policy review is whether a policy would have a reasonable tendency to chill the worker’s NLRA Section 7 rights. This is a very subjective standard that relies on how an individual worker would reasonably construe or understand the policy as to what a worker can or cannot do per the policy. If the policy could be interpreted as impeding or restricting an employees’ rights in any way, it would be seen as illegal unless a greater business purpose can be argued. The only way an employer could rebut this presumption is to show the policy, as written, furthers legitimate and substantial business interests and a more narrowly tailored policy statement will not further that interest.
The new Stericycle burden will be difficult for employers to defend their facially neutral rules against because the NLRB states that this analysis must be done from the perspective of the employee. Because they work for the employer and have economic dependency on the employer, this fact will also be weighed against the employer’s need and interpretation of the policy.
It is recommended employers review their employee handbooks and do not just accept their own interpretation of business reasonableness and necessity. A more narrow or minimalist view of what the policy states should be looked at and advised if it can be written that way. What is the policy intended to protect? Better yet, putting the specific purpose or reason to justify the policy (or grouping of policies) in the statement would narrow its purpose and clarify what legal reason it has for the policy. Include illustrative examples.
Also include disclaimer language; however, understand that a disclaimer that states something like “if this policy is in conflict with labor law, the law will apply” will not save the company on its own.
Source: LAW 360 Employment Authority. How employers Can Navigate NLRB’s Pro-Employee Shift. (10/18/2023)
By Michael Burns, courtesy of SBAM-approved partner, ASE.