The National Labor Relations Board (“NLRB”) is cracking down on employers who have employee handbooks or policies that might be interpreted by employees to restrict their right to complain about wages, hours, working conditions or to communicate with union representatives.
On August 2, 2023, the NLRB issued its decision in Stericycle Inc., 372 NLRB No. 113 (2023) which adopted a new standard to determine whether employer handbook provisions unlawfully restrict employees’ exercise of protected concerted activity under Section 7 of the National Labor Relations Act. The new standard changes the NLRB’s previous approach which balanced a challenged rule’s potential impact on NLRA rights against an employer’s legitimate justifications for maintaining the rule.
Under the new NLRB standard, to challenge an employer’s work rule or handbook provision, an employee need only show that a rule has a reasonable tendency to chill employees from exercising their Section 7 rights. The NLRB will now analyze and interpret the rule from the perspective of an employee who contemplates engaging in protected concerted activity and is also economically dependent on the employer. The employer’s intent in maintaining such a rule is not even considered. If an employee could reasonably interpret the rule to have a coercive meaning, he will have met his burden of proof, thereby making the rule presumptively unlawful. The employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.
Specifically, clauses related to non-disparagement of the employer and confidentiality of wage and benefits information require special attention, as they can be misconstrued by employees as restrictions on conversations between coworkers or with union representatives regarding workplace conditions.
Employers are advised to carefully assess their employee handbooks and workplace policies to avoid potential unfair labor practice charges. Employers should also consider whether employer interests can be advanced by more narrowly crafted rules that do not interfere with employees’ rights.
Please contact your Hill Farrer attorney or any member of our Labor and Employment department at (213) 620-0460 to determine whether you need revise your employee handbook or workplace policies in light of Stericycle Inc.