It was bound to happen sooner or later, tbh.
As Presidents change from Democrat to Republican to Democrat, the complexion of the five-member (well, four now) National Labor Relations Board flips from union-friendly to management-friendly to union-friendly. And as the pendulum swings hard one way or the other, big “precedential” decisions from one Board get reversed and reinstated.
Take employee handbooks, for example. In 2017, the “Trump Board” undid an “Obama Board” ruling by establishing a new standard for workplace policies with this opinion. Under the earlier standard, handbook rules that an employee could “reasonably construe” to prohibit the exercise of National Labor Relations Act (NLRA) rights, such as discussing working conditions, were unlawful. In its place, the Board established a new test: when evaluating a facially neutral policy, rule, or handbook provision, one must consider the nature and extent of the potential impact on NLRA rights and legitimate justifications associated with the rule.
I wrote more words about the 2017 changes here.
Yesterday, the “Biden Board” re-established the earlier rule that aims to eliminate work rules with a “reasonable tendency to chill employees from exercising their rights” with this decision in Stericycle Inc.
How will the new (old?) standard work? If the Board ever gets all up on your stuff over a workplace policy — remember, the NLRA applies to most non-union companies, too — and the General Counsel satisfies the standard, then the rule is presumptively unlawful. (Trust me, she will.)
On paper, an employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer cannot advance that interest with a more narrowly tailored rule. If the employer proves its defense, the work rule will be found lawful to maintain.
But good luck with that.
So, what types of policies are now at risk of being overbroad? To name a few:
- social media,
- audio/video recording,
- cell phone use (including cameras),
- personal conduct,
- conflicts of interest, and
- confidentiality of harassment complaints/investigation
I’ll end with a few specific examples of unlawful policies:
Personal Conduct. Conduct that maliciously harms or intends to harm the Company’s business reputation will not be tolerated. You are expected to conduct yourself and behave in a manner conducive to efficient operations.
This policy is unlawful because it makes no exception for statements that would be protected by the NLRA, which would protect false or negative statements relating to Section 7 rights.
Conflict of Interest. The Company will not retain a team member who directly or indirectly engages in an activity that constitutes a conflict of interest or adversely reflects upon the integrity of the Company or its management.
Workplace investigations. …All parties involved in the investigation will keep complaints and the terms of their resolution confidential to the fullest extent practicable.
Both policies are flawed because employees may understand them to prohibit them from engaging in activities protected under Section 7 of the Act.
Sorry, don’t shoot the messenger. Instead, get help from an employment law attorney.