This past month, in Stericycle, the National Labor Relations Board (NLRB) announced a new amorphous legal standard it will use to judge whether union-free employer’s rules and policies are lawful under the National Labor Relations Act (“NLRA”). The Stericycle approach dispensed the categorical approach which identified certain policies as always being lawful. Now every policy will be reviewed based on the particular facts facing that employer. Among the policies that no longer enjoy blanket protections are:
- Rules restricting cameras in the workplace;
- Basic civility rules;
- Confidentiality rules for proprietary information;
- Social media restrictions;
- Rules prohibiting employee involvement in strikes outside of the employment context;
- Rules allowing the search of employee property;
- Rules restricting communication with the media; and
- Rules requiring confidentiality during ongoing investigation.
Moving forward, the NLRB will analyze all policies using a two-step process:
Step One: The NLRB’s General Counsel must prove the challenged rule has a reasonable tendency to chill employees’ exercise of their rights from the perspective of an economically dependent employee (in the past, the Board analyzed whether rules chill the rights from the perspective of a reasonable employee).
Step Two: If Step One is satisfied, the employer may rebut the finding by proving the rule advances a legitimate and substantial business interest, and the employer is unable to advance that interest with a more narrowly tailored rule.
What does this mean for you?
This new standard increases the likelihood that employer handbooks are unlawful under the NLRA. To make matters worse—the NLRB can find an employer guilty for having an unlawful policy even though the policy was never enforced! This means old, dormant sections of handbooks could still land an employer in hot water!