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Employers Beware: Your Employee Handbook Could Soon Be Unlawful

Most of you know the NLRB is a political body controlled by the party residing in the White House.  As such, like most other federal agencies, its agenda and policies are subject to constant change based on the political leanings of the President.  Therefore, it should come as no surprise to learn that more changes are headed your way thanks to the new Democratically controlled NLRB and its Democratic General Counsel, Jennifer Abruzzo.  

As we have previously written, under the Trump administration, the NLRB was extremely pro-employer.  It applied many employer-friendly rules to personnel policies, including those found in your typical employee handbooks.  The Trump Board issued very pro-management interpretations of those policies (the “Boeing Rule”).

However, today, Biden’s pro-employee NLRB is considering a case, Stericycle, which could turn the Boeing Rule on its head and force employers to dust off their pre-Trumptopian employee handbooks and policies.  The anticipated outcome in Stericycle would result in the Boeing Rule being discarded in favor of the previously followed, pro-employee, Lutheran Heritage Rule (the “Lutheran Heritage Rule” or “LHR”).

What Employers Can Expect

If the Lutheran Heritage Rule once again becomes the law of the land, employers will no longer be permitted to enact policies which could reasonably be construed to prohibit an employee’s exercise of his or her NLRA rights.  

The Lutheran Heritage Rule is in stark contrast to the Boeing Rule, which the NLRB currently follows.  Under the Boeing Rule, employers are allowed to have policies that are neutral on their face, even if employees could reasonably interpret the policy to be a restriction on their right to unionize. Under Boeing, if a policy could reasonably be interpreted to interfere with an employee’s NLRA rights, then the NLRB would first evaluate the nature and extent of the potential impact on an employee’s NLRA rights, and then determine if a legitimate justification existed for the employer to have the rule.  All of this will disappear if Boeing is overruled. 

What’s at Stake for Employers Should LHR replace the Boeing Rule

The following are four examples of some standard employee policies which may soon need to be changed if the NLRB rules in Stericycle the way most experts anticipate:

No Camera’s in the Workplace. 

In 2017, the NLRB ruled in Boeing that the company’s policy prohibiting employees from bringing cameras or camera-enabled devices into work was permissible.  The Board determined Boeing’s desire to protect confidential and secure information was a legitimate justification for the policy.  And, that when contrasted against employees’ possible loss of NLRA rights, the contrast was “comparatively slight” which led the NLRB to conclude that the policy was lawful.

Previously under the Lutheran Heritage Rule, the NLRB found this policy to be unlawful because it could reasonably be construed to prohibit employees’ protected activity under the NLRA.

Mandating a Harmonious Workplace

One policy which has become commonplace in recent years centers around an employer’s desire to create a “harmonious workplace.” In most instances the intent behind the policy is to (i) prohibit employees from using abusive language towards one another and (ii) foster cooperation. However, rules like these will certainly come under fire if THR is once again the controlling rule.  Simply, while generally acceptable under the Boeing Rule, under the Lutheran Heritage Rule, the NLRB found policies which prohibit employees from making false, vicious, profane, or malicious statements about co-workers or even their employers could reasonably be interpreted to restrict an employee’s exercise of NLRA rights and as such is unlawful.

No/Limited Social Media Utilization

As social media and its use has become an integral part of many employees’ lives, employers have found the need to curtail its usage.  Under Boeing, policies which restrict an employee’s use of social media and required employees to be “respectful and professional” when posting about the employer were presumptively lawful; however, they were forbidden when the NLRB evaluated them under the LHR standard. Also forbidden under LHR’s more restrictive approach, were policies which restricted posting incomplete, confidential, or inaccurate information about the employer.

Restrictions on Speaking with the Media

It is not uncommon for employers to have a policy that limits or prohibits employees from speaking with the media regarding business matters.  This type of policy has been widely accepted under the Boeing Rule as it is easy for employers to show they have a legitimate interest in limiting who is permitted to speak to the media.  However, if the Lutheran Heritage Rule once again becomes law, this policy is likely unlawful because it could be seen as a restriction on an employee’s ability to speak with the media regarding the terms/conditions of employment.

What Employers Can Do Now to Prepare

The NLRB is not expected to rule on Stericycle for several months, which gives employers time to assess which rules and policies they currently have that may need to be discarded in light of the expected Stericycle decision.  While employers do not need to make changes now, they should not expect any grace period to make any necessary changes after Stericycle is decided.  We suggest you seek competent legal counsel now to review your existing policies and to help prepare for these anticipated changes.

Brody and Associates regularly advises management on all issues involving unions, staying union-free, complying with the newest decision issued by the NLRB, and training management on how to deal with all these challenges.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.