The Biden NLRB’s continuous revamping of policies applying to the NLRA is almost dizzying in intensity. Yet it’s time to shake off that disorientation and adapt accordingly. Employers will want to minimize risk of falling afoul of the NLRB by scrutinizing and, if necessary, revamping existing handbooks and work policies.
The Board’s new Stericycle Inc. decision holds that a handbook provision will be deemed unlawful if it has a “reasonable tendency to chill employees from exercising their rights” in accordance with the NLRA’s Section 7. In other words, these provisions cannot interfere with or deter employees’ rights to self-organize or join existing unions and to choose representatives through which to collectively bargain.
This new standard applies to the following hot-button areas:
(1) Cell phone usage in the workplace
(2) Social media postings;
(3) Conflicts of interest;
(4) Confidentiality regarding harassment allegations and investigations;
(5) Personal conduct
Expect plenty of challenges while employers feel their way through the change. Heck, gray areas already exist regarding cell phones in the workplace, and this new standard also applies to recording footage for purposes of Section 7. Furthermore and as is the case with “reasonable” verbiage in the legal realm, the interpreter of said standard (Abruzzo) has leeway to wiggle into their desired result.
Our own Phil Wilson spoke with the Society Of Human Resources Management about the far-reaching implications of Stericycle. Phil concluded that this decision certainly eases the path for Abruzzo to decide that “a rule has a reasonable tendency to chill employees from exercising their NLRA rights.”
Granted, an employer can challenge and rebut that decision by proving that the rule is necessary to advance legitimate and substantial business interests, which cannot be satisfied through a rule that’s more narrowly tailored. If that burden of proof is satisfied, the rule can be upheld as lawful – easier said than done. If Abruzzo’s eyebrows are already raised by a work policy, it probably won’t turn out well for the employer.
Jon Hyman, an employment law attorney who runs the Ohio Employer Law Blog, has called this new standard a “real kick in the pants for employers.” He filled us in on his concerns with the “retroactive application” to all existing handbook rules, no matter when they were initially drafted.
“The retroactive piece is troubling but not surprising,” Hyman told us, for this requires employers to perform a thorough examination of work rules in order to comply with Stericycle. Hyman sees two standout problems:
The new “reasonable employee” standard is “exceptionally broad, such that I can envision an argument that would invalidate most attempts and compliance.”
The NLRB has not yet elaborated upon “the impact of safe harbor language in saving policies that are subject to an overly broad interpretation” by said “reasonable employee.”
You guessed it: this is a decision that will keep employment law attorneys busy for a while, so expect a bumpy ride while you buckle up and check those handbooks.
