The National Labor Relations Board (NLRB)[1] kicked off the month of August with a decision that will have rippling effects on workplace policies.
In Stericycle, Inc., the NLRB introduced new, stricter standards for evaluating whether an employer’s policy would discourage, or “chill,” an employee’s ability to engage in activity protected by Section 7 of the Act. The new analysis places particular weight on the economic dependence of employees. Specifically, the NLRB’s review of a challenged workplace rule or policy will now emphasize the perspective of an employee who is economically dependent on the employer and, thus, may err on the side of caution when interpreting an ambiguous work policy.
Stericycle makes clear that all workplace policies must be narrowly tailored to specific business interests and must avoid unnecessarily discouraging employees from taking protected actions. Unlike prior NLRB authority, however, there are no categories or types of policies that are presumptively allowed. Instead, if the NLRB General Counsel proves that a rule or policy has a “reasonable tendency” to restrict an employee from expressing concerns about wages or working conditions, the rule or policy is presumptively unlawful, even if the employer did not intend to restrict employees’ Section 7 rights. The employer may only salvage the policy and avoid liability if the employer can show that it was narrowly tailored to protect a legitimate and substantial business interest.
This decision is likely to have ramifications for all types of policies and practices, ranging from social media and email use to conflict-of-interest policies and the use of workplace security cameras. Employers should consult with legal counsel to ensure that their policies are compliant with the revised standard.
Please contact a member of the Brooks Pierce Labor and Employment Team for more assistance with workplace policy compliance.
[1] The NLRB is the federal agency charged with administering the National Labor Relations Act (Act), which was enacted to protect employees’ rights to engage in protected concerted activity. As workplaces have evolved, the NLRB’s focus has expanded beyond factory unions to working conditions across the private sector. Even non-union workplaces are subject to the NLRB’s governance.