Review Your Policies With a Magnifying Glass

The National Labor Relations Board (NLRB or Board), in the Stericycle decision, recently changed the way it will evaluate reasonable workplace rules under the National Labor Relations Act (NLRA or Act). The Board found that prior analysis was “problematic because it permitted employers to adopt overbroad work rules that chill employees’ exercise of their rights under Section 7 (the right to discuss wage and other terms and conditions of employment) of the Act.” The NLRB was concerned that employers were not required “to narrowly tailor their rules to further their business interests without unnecessarily burdening employee rights.” This decision applies to all private sector employers, whether unionized or not, and is retroactive.

Under the Stericycle standard, a challenged workplace rule will be presumed unlawful if the NLRB General Counsel proves that rule has a reasonable tendency to chill employees’ exercise of their rights. The employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and cannot advance that interest with a more narrowly tailored rule. If the employer makes their case successfully, the rule will be found lawful to maintain. The issue in the Stericycle case was whether the rule can be interpreted to limit employee rights to discuss wage and other terms and conditions of employment and if by doing so the employer is restricting employee right to unionize or other activities protected under the NLRA.

Unfortunately, this ruling leaves more questions than answers as it gives a very broad discretion to the Board to determine whether an employer rule or policy is in violation of the Act. Employers should avoid any ambiguity in policies as this will heighten the scrutiny on whether the policy is lawful. It remains to be seen how this will impact future rulings but we do know that the level of scrutiny of even facially neutral employer policies can more easily be challenged before the Board.

Employer Takeaway

It is imperative that all workplace rules and policies are reviewed under the Stericycle lens. Regardless of what an employer intends to address in a policy, if an employee or employee representative believes that policy limits their rights as protected under the NLRB, your organization is at risk for an unfair labor practices charge—regardless of whether you are a union shop! As always, a review of your employee handbook is in order.

If you need more resources around Labor Relations—whether your workplace has a union presence or not—we have experts here to support you! Members can call 800.399.5331 or email CEAinfo@employers.org.