Have you ever searched an employee handbook to decide on a particular course of action at work? In a recent decision that affects everyone employed by a company with an employee handbook, the NLRB held in Stericycle that company rules cannot be written in a manner that will inhibit employees from exercising their legal rights.
As we explain in more detail, this new directive will impact both businesses and employees. If you want to learn more about the NLRB policy change, reach out to us today.
What is the New NLRB Policy?
Under the newly adopted Stericycle standard, a workplace rule cannot “chill employees from exercising their Section 7 rights.” To “chill” means that a workplace rule would instill fear in employees, fearful that they might be disciplined or discharged for violating a company rule, even if the activity was within their legal rights. In other words, an unlawful rule under Stericycle is one that would put the employee “between a rock and a hard place,” whether to exercise his or her legal rights and risk being fired or remain quiet and follow the rule.
The employer can prevail by illustrating that the rule promotes a valid, significant business interest that cannot be achieved with more specific wording. An employer knows employees’ rights protected by the NLRA (National Labor Relations Act). The employer can initially draft a rule that satisfies its business interests and maintains discipline, while keeping the employees’ perspective in mind as well as the working environment.
The NLRB instructed that work rules must be evaluated individually. This evaluation will consider factors including the rule’s precise wording, the particular industry and workplace context, the unique employer benefits it could promote, and the distinct statutory rights it might breach. As with most policy changes, the NLRB held that the standard in Stericycle will be applied retrospectively, encompassing all ongoing cases.
The History of NLRB’s Policy Change in Stericycle
In 2004 in Lutheran Heritage, the NLRB adopted an approach to prevent rules in the workplace from limiting employees’ exercise of their Section 7 rights. The Lutheran Heritage opinion held that even if the employee handbook rules did not directly restrict union activities, the rule could be considered illegal if employees could “reasonably construe” the wording of the rule to prohibit any Section 7 activity.
Rights under Section 7 of the Act include “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively . . . , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. §157. The “rules” in question did not affect overt union activities or employees’ efforts to organize a new union under Section 7 of the Act. Rules that might interfere with those rights have always been illegal. It is rules that affect “concerted activities” to promote the “mutual aid” or benefit of employees generally which have been the subject of dispute.
“Concerted activities” means two or more employees involved in an activity or even one employee acting not only for himself but for other employees as well, even if not union members. Acting for the “mutual aid” of other employees could mean any action pertaining to employees’ interests at work, such as wages, comfort, proper plumbing, functioning HVAC, safety, benefits – any employee interest pertaining to working conditions.
In 2017, the NLRB held in its Boeing decision that in drafting workplace rules employers should balance two factors: (1) the nature and extent of the potential impact on Section 7 rights and (2) the employer’s legitimate justifications associated with the rule. The Boeing decision attempted to simplify the process by creating 3 categories of employee handbook rules:
Category 1 – Rules that would always be considered lawful because (i) the rule, when reasonably interpreted, would not prohibit or interfere with the exercise of NLRA (National Labor Relations Act) rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
Category 2 – Rules that would warrant individualized scrutiny to determine whether the employees’ and employer’s rights were both protected and properly balanced.
Category 3 – Rule that would always be considered unlawful because they would prohibit or limit employees’ rights and the limitation was not outweighed by the employer’s justifications associated with the rule.
The NLRB in Stericycle viewed Boeing’s rigid analysis using the “categories” as problematic because this approach did not take into account the differences that exist in different industries and even differences within industries. For example, a “no camera” rule in a hospital might serve a legitimate interest in protecting the privacy of patients. By comparison, there would be no such interest for an employee of a landscaping company.
Which Employee Handbook Policies Could be Deemed Unlawful?
It has always been unlawful for employers to institute a rule that would interfere with union activities. Although the NLRB now requires that each rule be considered on a case-by-case basis, there are categories which may be suspect or ripe for scrutiny.
Civility Rules: Some companies have rules requiring employees to positively engage with other co-workers. Rules requiring only positive communications may now be perceived as inhibiting or restricting Section 7 rights. That is because employees might disagree or even argue about whether work conditions should be changed or whether anyone should voice their concern to management.
Rules Involving Premises Restrictions: The NLRB stated that “an employer’s rule denying access to all off-duty employees to all areas of its premises violates the Act unless there are legitimate business concerns to justify the rule or policy.” Employees may want to view an area they heard was dangerous. Or an employee who is off duty may need to deliver an urgent message to a coworker. Employers must be specific about not going into prohibited locations.
Recording Restrictions: In the current era of “smart phones,” almost no one is without a cell phone. Employees may want to document hazardous working conditions or employer actions that violate the Act. Most people who own a cell phone will usually take a photo of things or locations rather than make notes. If there is a specific reason why employees should not record, photograph, or use their cell phones, employers should delineate those restrictions. It would be helpful for the employer to state its rationale for such a restriction.
These are obvious examples of rules that could adversely impact employees’ rights to discuss or take action toward obtaining better working conditions. We are seeing scenarios described in the news such as employees’ voicing their dissatisfaction with working conditions at Starbucks, UPS, and Amazon. However, every situation and every rule will be different. Thus, the need for the case-by-case analysis.
Consult a NLRB Policy Expert
The NLRB policy change for employee handbooks recognizes the current trend that more and more employees are acting in concerted ways to secure better working conditions. If you want to learn more about the NLRB policy change, contact us today.