Attorney Bob Reinertson wrote recently about a decision of the National Labor Relations Board that significantly changed how the NLRB will review workplace policies and employee handbooks to determine whether they are in compliance with federal law. The issue has always been that workplace policies (normally included in an employee handbook) may not interfere with an employee’s rights protected by the National Labor Relations Act. Recent decisions by the NLRB have significantly modified the outlook from the NLRB as to what types of policies a company can adopt and whether those policies would interfere with employee protected rights. The past Board decisions focused on whether the language could be interpreted in any fashion to in some way create an employee’s perception that the company is trying to limit their rights to communicate about working conditions.
The recent decision from the NLRB has adopted a new test that will be used by the Board in determining whether or not a company policy or workplace rule violates the National Labor Relations Act. This new test indicates that the Board will evaluate two specific criteria when looking to determine whether or not a particular workplace policy or rule will potentially interfere with the exercise of employee rights. The two criteria are:
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The nature and extent of the potential impact the workplace policy or rule would have on employee protected rights; and
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Whether there are legitimate justifications associated with the rule that would override or supersede any concerns about the potential impact on the employee exercise of protected rights.
These two criteria will be looked at very closely by the Board and its agents if a complaint is filed regarding a workplace policy or a provision included in a company employee handbook. This seems to be a balancing of the importance of no restrictions on employee protected rights and the right of a company to create workplace policies or rules necessary for management of the business setting.
In the end, the Board indicated that there would be three different categories of employment policies or employee handbook provisions that would result from this new balancing test. Those categories are:
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Company policies or rules that will be considered lawful because the rule (as reasonably interpreted) does not prohibit or interfere with the exercise of employee rights or the potential adverse impact on employee rights is outweighed by the justifications associated with the rule or workplace policy;
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Company policies or rules that require more individualized review and scrutiny to determine whether the rule interferes with the exercise of employee rights and whether that interference is outweighed by legitimate business justifications for the rule;
Company policies or rules that are deemed unlawful because they interfere with employee rights and the interference outweighs any company justification provided for the implementation of such a rule in the workplace.
This new weighing process provides more opportunity for a company to justify why they have implemented a particular company rule or workplace policy that addresses employee conduct in the workplace. The weighing process that will be used by the Board gives equal consideration to protecting employee rights and the importance of a company implementing work rules that allow the company to regulate the conduct of its employees in the workplace for legitimate business reasons. Companies should spend the time making sure they have justification for any work rule or workplace policy that is necessary for addressing employee conduct in the workplace.
