Thursday, August 3, 2023

NLRB resets the rules on employee handbooks … yet again

Yes, we need to talk about employee handbooks and the NLRB … again. 

Yesterday, the Board decided Stericycle, Inc., and announced its 5th (at least) new and different standard in the past 25 years as to when a workplace policy (such as those in employee handbooks) violate employees' rights to engage in protected concerted activity under the National Labor Relations Act to talk between and among themselves about their terms and conditions of employment.

It's enough to give an HR practitioner or employment lawyer legal whiplash, and I'm not going to go through the history of all of these various disparate standards. If you want full history, you can read the Stericycle opinion or search the blog's archives.

What you really want, and need, is a summary of the new standard moving forward (and, as you'll soon discover, backward). Here it is.

1.) A workplace rule is presumptively unlawful if a reasonable, layperson, non-lawyer employee — someone who is economically dependent on the employer and thus inclined to interpret an ambiguous rule to prohibit protected activity — would reasonably interpret the rule to chill one from exercising their Section 7 rights.

2.)  An employer can rebut that presumption of unlawfulness 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.  

Here's the NLRB's real kick in the pants for employers: "We find that retroactive application of the standard we announce today is appropriate." Thus, the new Stericycle standard applies not only to new workplace policies drafted moving forward, but also to all workplace policies going as far back in history as they exist. 

Further, we don't even know yet what the application of this newly announced standard looks like, as the NLRB did not pass judgment on Stericycle's policies, but instead remanded the case to an ALJ to apply the new standard.

So, to sum up: we have a new standard governing the legality of workplace policies under the NLRA and it applies to all policies in existence no matter when drafted, but we have no idea yet how this new standard will apply to those policies in actual practice. Thanks, NLRB! Stay tuned, I guess?