NLRB Tightens Back Up on Employee Handbook Rules

On August 2, 2023, the National Labor Relations Board issued a ruling that makes it easier for employees to challenge certain policies and work rules under Section 7 of the National Labor Relations Act.  Section 7 protects an employee’s right to form or join a union, and also to engage in concerted activities for mutual aid or protection.  This includes things like speaking up on behalf of co-workers to protest unfair wages or complain about a rude supervisor. The Section 7 protection applies to non-supervisory employees regardless of whether the workforce is unionized or not.

In Stericycle Inc., the Board held that work rules such as those requiring confidentiality or civility, or restricting an employee’s social media use will be found “presumptively unlawful” if they would have a reasonable tendency to chill employees from exercising their Section 7 rights.  This will now be evaluated from the perspective of an economically-dependent, non-lawyer employee who will “be inclined to interpret any ambiguous work rule to prohibit protected activity she would otherwise engage in.”  The employer must then prove two things:  first, that there is a legitimate and substantial business reason for the specific scope and wording of the rule and, second, that the business interest cannot be accomplished with a more narrowly tailored rule.

This ruling overturns prior precedent from the 2017 Boeing Co. decision which allowed certain categories of employer rules to be presumed lawful.  Both union and non-union employers should carefully review their employee handbooks and any policies that potentially limit employees’ speech and behavior to assess their risks under the NLRA.

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