A year ago, the National Labor Relations Board (NLRB) by party lines ruled to ramp up its scrutiny of workplace rules.  The NLRB ruled that employer handbook policies violate the National Labor Relations Act if they have a "reasonable tendency" to dissuade workers from engaging in organizing activity, such as making workplace recordings and discussing concerns with colleagues.  Many employers are under the mistaken belief that the National Labor Relations Act only covers union employers, but the NLRA actually covers union and non-union employers alike.

The Stericycle rule is a much lower standard than what was approved in the previous administration and impacts many common employer handbook policies that are generally written broadly including the below:

•              Confidentiality

•              Recording and picture taking

•              Engaging in disruptive behavior such as insubordination, non-cooperation or any on the job conduct that may adversely affect operations

•              Social media and blogging (bad-mouthing the employer)

•              Cellphone use

•              Searching property

•              Use of employer logos or intellectual property

It also includes other seemingly “neutral” rules deemed to address issues of acting jointly on topics regarding wages, benefits, or terms and conditions of employment. What makes this rule even more problematic is that it also applies retroactively.  If employers had not reviewed and updated their handbooks, they are at risk under the Stericycle rule.

Stericycle arose because Teamsters Local 628 claimed that Stericycle had overly broad work rules for employees, including making workers keep harassment allegations secret and preventing them from taking actions that could hurt the company's reputation.  An NLRB judge in 2020 ruled that the policies violated the NLRA under the previous administration’s standard. 

The Stericycle analysis has rules to be evaluated from the perspective of a worker who is "economically dependent," and who views the rules or policies from a work perspective to keep their job. In other words, work rules will be reviewed based on how employees perceive them and would be unlawful if they have a "reasonable tendency to chill" workers' exercise of their rights.

Therefore, since Stericycle, a worker was required to be reinstated after being fired for posting an internal email on social media in violation of policy (ExxonMobile). 

In another case, a professional communication policy of Starbucks, "How We Communicate," was ruled illegal by an NLRB judge as  the policy was setting expectations that employees communicate with each other and customers "in a professional and respectful manner at all times.”  Specifically, the NLRB Judge ruled that [r]espondent has not rebutted the presumptive violation by showing that the prohibition on disrespect or unprofessional comments directed toward supervisors or other partners advances a legitimate and substantial business interest that cannot be advanced with a more narrowly tailored rule."

In another case, the NLRB ruled that a policy which prohibited salaries to be shared with other employees to be illegal.  To be fair, compensation confidentiality policies have traditionally been considered unlawful.  This case involved the discussion of a gas stipend an employee received from discussing it with another employee.  Although the case was broader and the employee was fired for unprofessional conduct the NLRB judge ruled, but the judge also struck down the compensation confidentiality policy.

The takeaway for HR is that many policies are questionable today under the Stericycle analysis.  The handbook, if not already reviewed and adjusted with policies that may be “legal,” should be reviewed and updated.  If not, an unfair labor practice (ULP) could be filed by employees with the NLRB, even if a nonunion employer.

ASE Connect

In-Person Class: Designing and Updating Employee Handbooks - Participants will receive instruction on on critical legal compliance handbook components and standard and optional policies to include in a handbook. The course will discuss layout tips that will help keep update work to a minimum. This class will be held in Novi on September 18, 2024, 9:00 a.m. - 12:30 p.m. Register here.

ASE Handbook Services - ASE can provide employee handbook review or update. If an organization does not have an employee handbook yet, ASE can develop a complete employee handbook customized to your organization’s policies and practices. If you have a handbook, we can review it for compliance as well as layout for ease of reading. For information about ASE employee handbook review and development services contact Michael Burns.

Source: Law360 8/7/24,6/13/24, 8/2/23, EPTW 8/9/23