News & Thought Leadership from Sulloway & Hollis
The NLRB elevates scrutiny of workplace handbooks.
Last week the National Labor Relations Board (“NLRB”) significantly increased the burden on employers by adopting a new legal standard for workplace rules.
On August 2nd, 2023, the NLRB issued a decision in Stericycle, Inc., under which work policies are presumptively unlawful if the policies have a “reasonable tendency” to dissuade employees from engaging in certain protected activities. The work rules at issue governed personal conduct, conflicts of interest, and confidentiality of harassment complaints, but the new standard will apply to all policies.
Previously an employer had flexibility when tailoring its policies to promote legitimate and substantial business interests. That approach, according to the NLRB, caused employers to adopt overbroad work policies that deterred employees from exercising “Section 7” rights, such as organizing activities, making workplace recordings, and discussing workplace concerns with colleagues.
Under the new standard, the NLRB evaluates workplace rules from the perspective of an economically dependent employee. If an employee can “reasonably interpret” a policy to “have a coercive meaning,” then the policy is presumptively unlawful – even if there is another reasonable reading of the policy that is not coercive. The burden is then on the employer to rebut this presumption by proving that the policy advances a “legitimate and substantial business interest,” and that the employer is unable to advance that interest with a more narrowly tailored policy. Moreover, the new standard is retroactive.
The NLRB’s Stericycle decision continues a pattern of increasing scrutiny of workplace rules and increasing the burden on employers. Now is a good time to review your company’s workplace handbooks to ensure that you comply with these new standards. The Labor & Employment team at Sulloway & Hollis is ready to assist you with these endeavors.