NLRB Decision Establishes New Standards for Workplace Policies

Orrick, Herrington & Sutcliffe LLP

This summer, the NLRB adopted a new standard for assessing the lawfulness of workplace policies. Overruling its 2017 decision in Boeing that relaxed scrutiny of workplace policies, the NLRB ruled in Stericycle that a workplace policy violates Section 7 of the NLRA if it has a “reasonable tendency” to dissuade workers from organizing activity.

The decision addresses concerns with overbroad workplace policies governing personal conduct, conflicts of interest, confidentiality of harassment complaints, limits on making video and audio recordings in the workplace, engaging in disruptive behavior and speaking to the public or the media.

Here is what employers should know:

  • The NLRB will increase scrutiny of workplace policies.
  • If an employee could reasonably interpret a workplace policy to prohibit activity that is protected under Section 7 of the NLRA, the NLRB will find the policy unlawful even if another interpretation of the policy is reasonable.
  • If a workplace policy is found to be unlawful, the employer may defend the policy by showing it’s the least restrictive way to further the employer’s legitimate and substantial business interests (i.e., the policy must be as narrowly tailored as possible).

Now may be good time to review the following documents and policies for compliance with the NLRA:

  • Employee Handbook
  • Disciplinary Policy
  • Social Media Policy
  • Policy Regarding Statements to the Public or Media
  • Code of Conduct
  • Third-Party Communications Policy
  • Recording Policy
  • Conflicts of Interest Policy
  • Anti-harassment Policy

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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