Employment / 1 min read
Employers should review their handbooks and policies following a landmark ruling, this month, by the National Labor Relations Board (“NLRB”).
In the ruling, an administrative law judge found that the employer violated the National Labor Relations Act (“NLRA”) by maintaining certain rules for its employees that addressed personal conduct, conflicts of interest, and confidentiality of harassment complaints. In the ruling, the Judge adopted a new standard for whether work rules violate the NLRA. Under that standard, advanced by the NLRB, if an employee could reasonably interpret the work rule to have a coercive meaning, the NLRB general counsel could prove that the rule has a reasonable tendency to deter employees from exercising their NLRA rights. According to the NLRB, the employer's intent in maintaining a work rule is inconsequential.
If the general counsel provides such proof, the work rule is presumptively unlawful. The employer, however, may counter the presumption by proving that the rule advances a legitimate and substantial business interest. The employer could then advance that interest with a more narrowly tailored rule. If the employer proves this, the work rule will be found lawful.
Examples of policies that likely need to be reviewed and rewritten to be aligned with the new board standard include work rules which:
- Restrict employees' use of social media.
- Restrict criticism, negative comments, or disparagement of the company.
- Promote civility.
- Prohibit insubordination.
- Require confidentiality of investigations and complaints.
- Mention the use of cameras or recording devices in the workplace.
- Restrict the use of company communication resources, such as emails.
- Limit the recording of meetings or the use of smartphones or other devices.
- Restrict meetings with co-workers or the circulation of petitions.