The National Labor Relations Board (NLRB) recently issued an update to the standard for assessing whether work rules violate the National Labor Relations Act (NLRA).
The previous standard designed by the NLRB categorized which work rules are lawful to maintain. The policy made no exception for statements that would be protected by the NLRA, which would protect false or negative statements relating to the right to organize or to concerted protest of workplace issues.
Under the new standard, the NLRB’s General Counsel has to prove that a challenged rule has a reasonable tendency to restrict employees from exercising their rights. If an employee could reasonably interpret the rule to have a coercive meaning, and the General Counsel agrees, then the rule is presumptively unlawful. However, the employer may rebut that decision by proving that the rule advances a legitimate and substantial business interest that can’t be reached with a more limited rule. If the employer proves its defense, then the rule will be held to be lawful.
It may be difficult for businesses to identify unlawful or potentially coercive workplace rules within their policies but here’s an example:
Let’s say a business has a social media policy that prevents employees from sharing confidential information about the company, to use good judgment, and to conduct themselves in a manner that is reflective of being a representative of the company on their personal accounts. While this policy in general is lawful, it does not make any exception for statements that would be protected by the NLRA. Employees are allowed to engage in concerted activity which include, but is not limited to, organizing a union or protesting workplace issues.
Moving forward, under the new standard, employment policies must make that clear. Taking the same policy above, it should state instead:
“Company XYZ’s social media policy prevents employees from sharing confidential information about the company, to use good judgment, and to conduct themselves in a manner that is reflective of being a representative of the company on their personal accounts. This policy does not prevent employees from engaging in concerted activities relating to their wages, hours or working conditions, or any other conduct protected by Section 7 of the National Labor Relations Act (NLRA)”.
Employers should review their handbooks and policies to ensure that their workplace rules can’t be reasonably interpreted as restricting employees’ protected concerted activity under the NLRA. This review should include whether or not an employer can articulate a legitimate and substantial business interest for workplace rules.
If you need assistance ensuring that your handbooks and policies are compliant to the updated NLRB and NLRA standard, I’m happy to help. Please contact me at edgar@officiumdc.com. If you’re interested in additional information about Officium LLC and the HR, mediation and business solutions services we offer, please click here.