National Labor Relations Board Update

Since 2017, employers have been subject to greater leeway with crafting their workplace policies and rules. However, that has changed due to a recent decision by the National Labor Relations Board (NLRB) that readopts and modifies a prior standard that will be used when analyzing workplace rules and policies that are challenged by employees as violating Section 8(a)(1) of the National Labor Relations Act (NLRA).

In an August 2, 2023 decision, the NLRB adopted a new legal standard for assessing employer rules that are challenged under Section 8(a)(1) of the National Labor Relations Act. See Stericycle, Inc. and Teamsters Local 628, 372 NLRB No. 113 (2023 WL 4947792).

This new legal standard for evaluating employer work rules is pro-employee and will raise the level of scrutiny that employer rules will face if challenged. This decision essentially represents a reinstatement of a modified version of the previous Lutheran-Heritage standard of 2004.

Employees have a right to engage in “protected concerted activity” when those employees are taking action relating to the “terms and conditions of employment for their mutual aid or protection.” This includes things such as discussions between co-workers about compensation, workplace safety, union matters, and other topics. Therefore, it is crucial that employers practice caution when creating their handbooks.

Rules set forth by employers will be found to be presumptively invalid if they have “a reasonable tendency to chill employees” from exercising their rights. While an employer may still be able to rebut that presumption by showing that the rule addresses a legitimate business interest that cannot be addressed in a more narrowly tailored manner, the NLRB will be placing a heightened scrutiny on that claim.

The NLRB will look at challenged rules from the perspective of a reasonable employee who is economically dependent on the employer and therefore may be more likely to interpret rules to prohibit protected activities.

This may be particularly relevant when it comes to policies regarding the use of social media, discipline, confidentiality, conflicts of interest, and any other provisions that tend to restrict conduct. Employers should scrutinize all workplace policies, procedures, and rules through this new lens of whether such rules may be interpreted as prohibiting protected activities.

If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.