Over the past decades, standards for profanity, inappropriate social media use, and other workplace issues commonly addressed in employee handbooks have changed along with the political makeup of the National Labor Relations Board (“NLRB”). In a recent decision which we assure our readers has nothing to do with politics, the NLRB cracked down on employee handbook language, rejecting the employer-friendly standard it established in 2017 (in the Boeing decision), and replacing it with an approach that “builds on and revises” its old standard established in 2004 (in the Lutheran Heritage decision). This change is not good news for employers.
In Stericycle, Inc. and Teamsters Local 628, the NLRB adopted a framework to determine whether employers who adopt workplace rules and policies are violating employees’ rights under Section 7 of the National Labor Relations Act by chilling the employees’ ability to engage in concerted activity. The new standard is catered to employees, and will result in a workplace rule being found to be presumptively unlawful if an employee “could reasonably be interpreted to have a coercive meaning[.]” In its press release announcing the decision, the NLRB stated that the Board “rejected Boeing’s categorical approach to work rules, under which certain types of rules were held to be always lawful, regardless of how they were drafted or what interests a particular employer cited in defense of the rule.”
Because any such rule will be evaluated based on the perspective of an employee who is subject to the rule and economically dependent on the employer, employers can expect an onslaught of unfair labor practice charges based on language contained in existing handbooks. Employers are able to rebut the presumption imposed by this amorphous standard by providing evidence that the challenged rule advances a legitimate and substantial business interest that cannot be advanced via a more narrowly tailored rule. To borrow some constitutional law terms, the NLRB’s jurisprudence is shifting towards strict scrutiny of employee handbooks. The decision harkens back to the mid-2010s when the NLRB was increasingly skeptical of employers who took adverse action against employees based on social media posts. As previously covered by HR Legalist, during that time period the NLRB also had a track record of striking down social media policies that it deemed overbroad. This latest decision is also in line with the NLRB’s other recent actions scrutinizing employment agreements (including severance agreements).
In light of this development, we encourage employers to engage their attorneys to review and revise their existing policies to avoid running afoul of a hostile NLRB.
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