National Labor Relations Board Update: New Standard for Assessing Lawfulness of Work Rules
As all HR professionals know, employers must ensure their employee handbooks and other workplace policies comply with the latest federal, state, and local laws.
In California, those laws change annually -- sometimes more often. In addition, all employers -- with or without a union -- need to pay close attention to whether seemingly "neutral" workplace rules comply with the latest decisions from the National Labor Relations Board (NLRB), which enforces the National Labor Relations Act (NLRA).
This summer, the NLRB issued an important decision, Stericycle, Inc., that will increase scrutiny of such policies. Specifically, under the current Board’s interpretation under the NLRA, a workplace rule that has a reasonable tendency to “chill" an employee's exercise of their rights to engage in protected concerted activity under the NLRA (which can include things like discussing wages or working conditions with co-workers, or coordinating with co-workers to bring workplace concerns to an employer) is presumptively unlawful. An employer may rebut this presumption of unlawfulness by showing that the rule is justified by a legitimate business interest, and that it would not be possible to draft the rule more narrowly.
In addition to Stericycle, other NLRB decisions and guidance issued in the past year call for review of employer severance agreements, non-compete/non-solicitation agreements, and NDAs (non-disclosure agreements).
Workplace policies and agreements that should be reviewed in light of this constantly evolving legal authority include, but are not limited to:
(1) confidentiality rules, including NDAs and non-compete/non-solicitation agreements;
(2) conflict of interest policies, including "outside employment" policies;
(3) rules regarding smartphone use in the workplace, including blanket prohibitions on taking pictures/videos in the workplace;
(4) social media policies;
(5) workplace codes of conduct, specifically rules relating to civility or insubordination;
(6) rules regarding communications with the media;
(7) policies restricting criticism or disparagement of the employer;
(8) electronic monitoring of employee activity; and
(9) workplace investigation policies.
The whole Stericycle decision is worth a read for in-house counsel or HR professionals who are asked to develop workplace policies. Violation of the NLRA can result in costly unfair labor practice claims and/or state law claims for wrongful termination and whistleblower retaliation.
If your employee handbook, confidentiality agreement or severance agreements have not been reviewed by legal counsel in the wake of new NLRB decisions and guidance, please feel free to reach out to us at wilder@clementsemploymentlaw.com. We have already updated our model policies and templates to comply with the new NLRB decisions.