NLRB Decisions Mandate Significant Handbook Revisions

As expected, under the Biden Administration, the National Labor Relations Board has become more “labor friendly”. In that vain, the NLRB has substantially changed what handbook language will be perceived as contrary to the requirements of the National Labor Relations Act to not interfere with sections 7 rights of employees to self-organize, and engage in concerted activities for collective bargaining and for other mutual aid or protections.

It is a violation of the law for an employer to “interfere with, restrain, or coerce” employees in the exercise of these rights.   But recent decisions such as “Stericycle” will allow the Board to review handbook language and if it finds language that is overly broad, leading to work rules that can be interpreted to impede the exercise section 7 rights, find that an unfair labor practice has occurred.  The new standard entails that if an employee could “reasonably interpret” a policy to restrict his/her rights, the policy will be found to be “presumptively unlawful” until and unless the employer can show substantial, legitimate business interests that would not be protected by a less broad policy.

The Board has also determined that such violations of the law can result in a Bargaining Order requiring the company to recognize the union and engage in good faith negotiations without the need for an election.

This is a time bomb waiting to explode. Employers – union and non-union – must carefully review every policy, except those written specifically to comply with legal requirements, and determine whether any language violates this new standard.  This isn’t easy because the standard, “reasonably”, is so vague.

Policies must be clear and sufficiently detailed so that they cannot be interpreted as restricting or even discouraging protected activity.

Examples of rules which must be thoroughly reviewed to ensure they are not overreaching are those which prohibit;

• disparagement of the company
• discussion of wage rates
• insubordination
• the use of cameras or recording devices
• contacting third parties
• expression on social media or which require civility or confidentiality during investigations etc.

Employers should document the justification for work rules and make sure they are tailored to specific business needs.

Supervisors should be trained to ensure they understand the rules and their scope.

It’s important to recognize that a broad disclaimer such as “this policy is not intended to interfere with section 7 rights” is probably insufficient to prevent a violation being found.

We are, of course, available to assist employers in reviewing policies. The Board’s rules apply retroactively. Immediate action by all employers is highly recommended.

This summary is provided for informational purposes only and is not intended to constitute legal advice nor does it create an attorney-client relationship with Rimon, P.C. or its affiliates.

Dave Mahoney advises private business owners and their human resources professionals on how to navigate the always evolving employer-employee relationship. Dave is a trusted resource who advises companies, large and small – union and non-union, with the day-to-day challenges of complying with constantly changing federal, state, and local laws. Dave takes a proactive approach, helping employers avoid disputes by establishing policies and procedures that are designed to establish clear avenues of communication and expectations between companies and their workforces to avoid litigation whenever possible. Dave also regularly conducts internal audits and investigations to solve problems before they arise. Read more here.

Mark Portnoy assists his clients with resolving a wide range of Human resources issues. He has been assisting clients in both the public and private sectors in Human Resources and labor relations matters for forty-five years. Mark has been the chief spokesperson during hundreds of contract negotiations, and have represented clients before the NLRB, at grievance meetings and in arbitrations. Read more here.