By Bill Swan, Principal Consultant
On August 2, 2023, the National Labor Review Board (NLRB) decided a ruling affecting the language in many employer handbooks. The board changed a previous rule standard impacting nearly all employers, regardless of unionization.
For review, the National Labor Review Board is an independent federal agency whose members are appointed by the President of the United States and affirmed by the US Senate. The NLRB safeguards employee rights specified in the National Labor Review Act, such as the right to organize, the right to engage with colleagues to seek better working conditions, the right to choose whether to have a representative for collective bargaining or not, and the right to prevent and remedy unfair labor practices committed by private employers or unions. The rulings do not apply to federal and state governments, railroads, or airlines.
Stericycle, the company involved in the decision, is a waste management service in Baltimore. Policies the company had included:
- Limiting use of personal electronic devices to break times only.
- Requiring personal phone use and email use to be infrequent, brief, and limited to urgent communications with family.
- Banning employees from taking pictures, videos, or other recordings at the workplace without a supervisor’s permission.
- Prohibiting employee conduct that maliciously harms or intends to harm the company’s reputation.
- Prohibiting activity that constitutes a conflict of interest or adversely reflects upon the integrity of the company or its management.
- Prohibiting employees from disclosing retaliation complaints and the terms of their resolution.
The NLRB ruled Stericycle violated the NLRA by maintaining rules for employees that were considered overly broad. These policies generally addressed personal conduct, conflicts of interest, and confidentiality of harassment complaints. The new ruling assumes a rule is presumptively unlawful “if an employee could reasonably interpret” a rule to be so coercive that protected rights of the NLRA could be restricted even if the rule could be interpreted differently, and the employer did not intend to restrict any employee rights.
As a result of the ruling, employers should tailor more narrow work rules to ensure the rules are for legitimate business interests, are specific, and minimize, if not eliminate, the potential to be intimidating. So, the general intent of a broad rule is no longer reason enough to have the rule; there needs to be more to the reason.
The Board decision applies retroactively, which emphasizes the importance of employers addressing rules in their handbooks and getting them into compliance.
Considering the decision, some of the rules that should be reviewed include:
- Employee Conduct
- Social Media
- Using Own Devices
- Cameras in the Workplace
- Computer Usage
- Insubordination
- Moonlighting
- Confidentiality
If your organization could use some help with the challenges of reviewing these policies and getting them into compliance, FIT HR can help. We have experienced professionals on staff who have worked on hundreds of handbooks. Contacting an employment law attorney is also a good course of action, and FIT HR works regularly with trusted legal counsel. Contact us anytime. We are here to help.