Handbooks May Need Revision Following NLRB Ruling

Many employer handbooks and policies likely should be reviewed and revised following a landmark Aug. 2 ruling by the National Labor Relations Board (NLRB), Stericycle. Employers need to create documentary evidence of the justification for their work rules before an unfair labor practice charge is filed, recommended Harry Johnson III, an attorney with Morgan Lewis in Los Angeles and former NLRB member.

Handbooks Need Revision Following NLRB Ruling
NLRB Intensifies Scrutiny of Employer Policies
SHRM | Aug 2023

Employers will need to think carefully about how to defend some of their corporate policies, such as ones about cameras at a worksite, social media use and appropriate workplace conduct, in light of a recent decision by the National Labor Relations Board (NLRB).
Companies Should Nail Down Precise Business Reasons for Workplace Policies
SHRM | Aug 2023

Decision Stericycle, Inc.
Press Release Board Adopts New Standard for Assessing Lawfulness of Work Rules
NLRB | Aug 2023

Nonunionized Workplaces Also Impacted
Employers in nonunionized organizations—especially small businesses—often are surprised to learn they may be subject to U.S. labor relations laws. Employers that are unaware they may be covered by labor laws even though they have nonunionized employees are at great risk of violating those laws. It is critical for human resource professionals to have an understanding of the fundamentals of federal labor relations laws as they apply to the nonunionized workplace.

Complying with U.S. Labor Relations Laws in Non-Union Settings
SHRM Toolkit

Looking ahead, the Board will scrutinize workplace rules and employee handbook policies more closely than it has in recent years. To repeat — this impacts all employers, not just those with unionized workforces. Importantly for employers, workplace rules that were previously held to be permissible — such as restricting photography in the workplace or requiring civil conduct — may now be unlawful if a reasonable employee could interpret the rules as chilling protected rights.

ALL EMPLOYERS BEWARE: Previously Lawful Employer Rules May Now Violate the NLRA Even in Non-Unionized Workplaces
Steptoe | Aug 2023

Law Firm Articles

The National Labor Relations Board (NLRB) just changed the law again on employee handbooks by modifying the legal standards that for the past six years have provided a commonsense solution for evaluating workplace misconduct rules. Yesterday's decision will dramatically impact employers across the country, leading many to once again modify their handbooks to ensure compliance with the latest NLRB mandates.
Labor Board Issues a Blow to Workplace Conduct Policies: Here's How Your Employee Handbook May Need to Change Today
Fisher Phillips | Aug 2023

Under the newly adopted standard, the NLRB will now evaluate work rules and policies by determining whether the general counsel established that the work rule could reasonably be interpreted to have a coercive meaning, even if a contrary, noncoercive interpretation of the rule is also reasonable. In making this determination, the NLRB "will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer." If this burden is met, under Stericycle, the NLRB will find that the rule is presumptively unlawful. The employer may rebut this presumption 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.
NLRB Adopts Standard Critical of Employer Workplace Rules, Handbooks
Ogletree | Aug 2023

The deck is now stacked against employer work rules that have any potential ambiguity in the mind of an employee. Given the energy and zeal demonstrated by the NLRB General Counsel in seeking to hold employers accountable, it is reasonable to presume that the NLRB "handbook police" will return, leaving almost no handbook completely safe from attack. Employers should expect to see more scrutiny given to work rules and policies, especially those particularly sensitive ones such as anti-harassment and workplace conduct policies.
Oops, the NLRB Does It Again—The Handbook Police Are Back!
Blank Rome | Aug 2023

The majority opinion in Stericycle Inc. substantively revives the NLRB's stance on workplace rules as established in the 2004 Lutheran Heritage decision.Under this new framework, any employer's rule, policy, or handbook provision that  has a "reasonable tendency to chill employees from exercising their Section 7 rights" may be deemed to constitute an unfair labor practice and to be unlawful in violation of the NLRA.
Employer Handbooks and Policies Will Face More Scrutiny Under Stericycle, Inc. – NLRB Reverses a Prior Reversal
Epstein Becker & Green | Aug 2023

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