On August 2, 2023, the National Labor Relations Board (NLRB) issued its decision on Stericycle, Inc. In this landmark decision, the National Labor Relations Board (NLRB) established a new standard for evaluating workplace rules, particularly those addressing employee conduct outside work hours. The decision emphasizes the protection of employees’ rights to engage in protected concerted activity, such as discussing the terms and conditions of employment under the National Labor Relation Act (NLRA). As a result of this decision, there will be significant implications for employer handbook updates in 2024.
For background, the NLRA protects workers’ right to engage in “protected concerted activities,” which means acting together to improve their working conditions without fear of retaliation. This includes activities like talking with coworkers about wages or working conditions, organizing protests, and filing grievances. The NLRA protects most employees whether the workplace is unionized or non-unionized.
Because the NLRB will now assess whether a workplace rule has a “reasonable tendency to chill” protected concerted activity, this means that even if a rule is not explicitly intended to discourage employee discussion, it may still be unlawful if it has a chilling effect on such activity. Furthermore, an employer’s rule is presumed invalid under the new standard if the NLRB can show that the rule can be interpreted to infringe on employees’ rights to engage in protected activity in violation of the NLRA. The Stericycle decision will require employers to review their policies to determine if they tend to chill employees’ rights under the NLRA; whether they can demonstrate a balancing interest in the establishment of a particular policy; and whether policies are narrowly tailored to protect a legitimate or substantial business interest.
Next Steps
Employers must identify potentially problematic workplace policies and make updates as needed by ensuring that workplace rules demonstrate a legitimate and substantial business interest in justifying a workplace rule that could restrict protected employee activity. In doing so, employers should ensure that no narrower rule or workplace policy could adequately protect their legitimate business interests by crafting narrowly tailored policies to address the specific concern without unduly restricting employee rights.
Impacted handbook policies may include, but not be limited to, policies on harassment, bullying, open communication, social media usage, solicitation and distribution, code of ethics, standards of conduct, electronic monitoring, and outside employment.
It is recommended that employers consult with their employment law counsel to review handbook revisions and ensure compliance with the Stericycle decision and other applicable legal standards.
HR Works Can Help
HR Works offers an Employee Handbook Service which provides a legally reviewed employee handbook and annual ongoing legal updates.
Current subscribers of our Employee Handbook Services with annual legal updates will receive legal updates that have been reviewed under the scope of the Stericycle decision in early 2024. Non-subscribers may contact HR Works regarding our Employee Handbook Services by visiting our website and completing a “Contact Us” form or calling us toll-free at 1-877-219-9062.
