US Employee and Labor Relations: As of August 2, 2023 are your employment policies still valid?
- myHRSP
- Aug 8, 2023
- 3 min read
Executive Summary:
A groundbreaking decision by the National Labor Relations Board (NLRB) on August 2nd, 2023 has significant implications for employer handbooks and policies. The ruling in the Stericycle case introduces a new standard for evaluating whether work rules violate the National Labor Relations Act (NLRA).
This decision applies to a wide range of private-sector employers, potentially impacting countless workplace rules.
The key takeaway is that policies could be invalidated if employees could reasonably interpret them as having a coercive effect, regardless of the employer's intent.
The NLRB will evaluate policies from the perspective of an economically dependent employee contemplating protected concerted activity. The term “economically dependent employee” does not have a specific legal definition under US federal labor law or the National Labor Relations Act (NLRA).
However, it is concept that is often used in labor law to describe employees who rely heavily on their employment for their livelihood and economic well-being. The term “economically dependent employee” is used to emphasize that the NLRB will interpret workplace policies from the perspective of employees who are economically reliant on their jobs, and how those policies might impact their willingness to engage in protected concerted activities as defined by the NLRA.
Under this standard,
if an employee could reasonably interpret the work rule to have a coercive meaning, the NLRB general counsel would have met her burden to prove that the rule has a reasonable tendency to chill employees from exercising their NLRA rights.
In addition, the Stericycle opinion discarded previous NLRB decisions holding that certain types of policies were inherently lawful.
Employer Policy Implications
Examples of policies that likely need to be reviewed and rewritten to be aligned with the new board standard, could include work rules:
Restricting employees' use of social media.
Restricting criticism, negative comments, and disparagement of the company's management, products, or services.
Promoting civility.
Prohibiting insubordination.
Requiring confidentiality of investigations and complaints.
Restricting behaviors such as using cameras or recording devices in the workplace.
Outlining rules for safety complaints.
Restricting the use of company communication resources, such as email or Slack.
Limiting the recording of meetings or the use of smartphones or other devices.
Restricting meetings with co-workers or the circulation of petitions.
Limiting comments to the media or government agencies.
Employer Considerations:
1. Review and Revise Policies: Employers need to audit their existing policies to ensure compliance with the new NLRB standard. Policies likely affected include those restricting social media use, criticism of management, promoting civility, prohibiting insubordination, mandating confidentiality in investigations, and more.
2. Employee Intent: The employer's intent behind a policy is no longer the focus. Policies will be assessed based on how an average employee would perceive them, considering their impact on NLRA rights.
3. Protected Concerted Activity: Policies should not infringe upon employees' rights to discuss wages, benefits, working conditions, and engage in protected concerted activities such as petitions, refusals to work in unsafe conditions, or direct communication with employers.
4. Burden of Proof: The onus is on the employer to prove that a policy is lawful if challenged. This entails demonstrating that the policy serves a legitimate business interest and is necessary for that purpose.
5. Inherent Lawfulness Discarded: The previous notion that certain types of policies were inherently lawful has been abandoned. Each policy will be evaluated individually, potentially rendering previously acceptable policies subject to challenge.
6. Appeal Process: Although the decision is likely to be appealed, employers should not wait for the outcome. The NLRB will enforce the new standard during the appeal process. Companies risk policy invalidation if they don't promptly revisit and revise their policies.
7. Supreme Court Influence: The NLRB might not follow federal appeals court rulings outside its jurisdiction until the Supreme Court weighs in. This uncertainty emphasizes the importance of proactive policy review.
8. Consult Labor Counsel: Collaboration between HR professionals and labor counsel is crucial for auditing existing policies and ensuring alignment with the new standard. Staying informed about upcoming board decisions that apply the Stericycle standard is essential.
In conclusion, the NLRB's decision in the Stericycle case marks a paradigm shift in how workplace policies are evaluated. HR professionals and senior management should proactively review and revise existing policies to align them with the new standard. Failure to do so could lead to potential policy invalidation, backpay awards, and negative impacts on union elections.
Staying informed and collaborating with labor counsel are essential steps in navigating this new landscape of labor relations.
For more information on the NLRB's decision and its implications, refer to the official NLRB link:
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