Policy revision

Your Employee Policy Handbook Needs Revision (Again)

Because of a recent decision by the National Labor Relations Board (NLRB), your employee policies probably need a major rewrite to avoid an unfair labor practices charge. This decision applies to big and small companies, those that are unionized and those that are not.

In August 2023 in Stericycle, Inc., the Board adopted a strict new legal standard for reviewing workplace rules. In order to protect the employees’ right to organize and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”, as Section 7 of the National Labor Relations Act requires, employers cannot promulgate, maintain or enforce work rules that tend to inhibit employees from exercising their rights under the Act.

What are those concerted activities that employees may engage in together? Just a few examples:

  • Employees discussing or complaining about their salaries, benefits, and other working conditions;
  • Employees refusing to work in unsafe conditions;
  • Employees complaining about unfair treatment by a supervisor;
  • Employees openly talking to each other, on social media, to the press or otherwise about their complaints about their employer;
  • Employees joining with co-workers to grieve any mistreatment, file claims with a governmental agency or otherwise protest any aspect of their jobs.

You as an employer cannot prohibit any of these activities or discipline an employee for engaging in them. Moreover, you cannot have policies that discourage these protected concerted activities.

Policy handbooks have come under scrutiny by the NRLB frequently in the last 10 years, but the Stericycle decision takes this scrutiny to a new level. If the NRLB finds that an employer’s policies have a reasonable tendency to chill employees exercising of their Section 7 rights, then it is presumptively an unfair labor practice.

The NRLB looks at the rules from the viewpoint of an employee who is economically dependent on the employer, rather than just applying a reasonable person standard. The employer can only rebut the presumption that the rule is unlawful by showing the policy serves a legitimate and substantial business purpose and it is as narrowly tailored as possible.

Some employers have whiplash, because many of these policies were banned in 2015, declared legal again in 2018, and are now banned again. But this time, it is presumed that the employer engaged in an unfair labor practice if the policy in any way limits an employee’s right to discuss, complain or even talk to the press about working conditions. The employer starts off in legal trouble and then has to try to dig out of the hole.

In practical terms, that means that every employer needs to review its policies for any language that could be interpreted to limit an employee’s rights to criticize or complain about his supervisor, his coworkers, the rules, pay, benefits and any other working condition. These types of policies need to be reviewed and most likely rewritten:

Many lawyers would like to just solve this problem by adding a simple disclaimer to the policy handbook saying that no policy in the manual is intended to violate an employee’s Section 7 rights. It certainly won’t hurt to do that, but the NLRB is not overly impressed with stand-alone disclaimers. My plan is to both rewrite any policy that limits an employee’s rights to discuss and document their workplace concerns and to add an easy-to-understand disclaimer at the end of each rewritten policy.

As a side note, if you have a separate policy manual for supervisors, you don’t have to revise it. Supervisors are not protected by the NLRA.

While you are revising, don’t forget to update your accommodations policy to include religion and pregnancy. You also need to include a nursing mothers policy to comply with the PUMP Act.