NLRB Targets More Restrictive Standard for Employee Handbooks and Work Rules

By: Aaron D. Graves, Member, Gary S. Fealk, Member, and Alexander J. Burridge, Associate, Workplace Law Group

03/17/22

The National Labor Relations Board’s (“Board”) upcoming decision in Stericyle, Inc., NLRB Docket No. 01-CA-137660 may impact how the Board assesses the lawfulness of employer work rules and handbook policies in both union and non-union workplaces. The NLRB’s General Counsel has requested that the Board adopt a more restrictive standard. The Board also invited briefing from the public on the issue of whether changes to the standard should be made.

Currently, the Board assesses employer rules and policies by placing them in one of three categories:

1. 1. Category 1: Rules that either do not interfere with employees’ right to discuss terms and conditions of employment (“protected rights”) or for which the possibly adverse impact on protected rights is outweighed by the employer’s justifications for the rule. These rules are lawful.
   2. Category 2: Rules that should be scrutinized on a case-by-case basis as to whether they would interfere with protected rights, and, if so, whether the employer has a legitimate justification for the rules. These rules may be lawful or unlawful, depending on the circumstances.
   3. Category 3: Rules that prohibit or limit protected rights and for which the adverse impact on protected rights outweighs the employer’s justification for the rules. These rules are unlawful.

Since adoption of the above standard in 2017 in Boeing, Co, 365 NLRB No. 154, the Board’s makeup has changed. The Board members are expected to adopt a more restrictive standard for assessing employee handbooks and work rules. Previous to the 2017 Boeing decision, a work rule that did not explicitly prohibit protected activities, was not adopted in response to such activities, and was not applied to restrict such activities, was still unlawful if the Board found an employee would “reasonably construe” the work rule to prohibit his or her exercise of protected rights. The Stericyle decision could revert to this approach and eliminate the weighing of the employer’s legitimate justification for the rule when the Board assesses lawfulness.

In addition, if there is increased scrutiny of work rules/policies, Board investigations may include a routine review of work rules and handbooks. A more restrictive standard would likely put many common employee handbook policies at risk, including rules on social media use, cell phones, surveillance, searches, solicitation, and confidentiality. Diligent employers would be wise to review their work rules and employee handbooks for policies that could run afoul of the new standard to avoid business disruption, Board postings, and penalties.

We will continue to monitor the status of the Board’s upcoming decision in Stericyle and its impact on employers’ workplace rules. Employers who need guidance on creating or revising compliant employee handbooks should contact any member of Bodman’s Workplace Law Group. Bodman cannot respond to your questions or receive information from you without first clearing potential conflicts with other clients. Thank you for your patience and understanding.