Earlier this month the National Labor Relations Board ("NLRB") issued a ruling in Stericycle Inc. which adopted a new, stricter legal standard for evaluating whether a company policy or rule that does not expressly restrict employee concerted activity is "facially unlawful" under the National Labor Relations Act ("NLRA"). You may wonder what an NLRB case has to do with your company if your employees are not in a union. The NLRB is the federal agency that is responsible for determining violations of the NLRA, which applies to virtually all employers, irrespective of whether the employer's employees are unionized.
The policies at issue in the Stericycle case pertained to personal conduct, conflicts of interest, and confidentiality of harassment complaints. Ultimately, the NLRB held that any employment policy that has a "reasonable tendency" to dissuade workers from engaging in organizing activity violates the NLRA. This includes, for example, discouraging employees from discussing their workplace concerns with other coworkers.
Notably, based on Stericycle, the NLRB will now review employer policies from the perspective of an employee who is subject to the rule, who is economically dependent on the employer, and who also contemplates engaging in protected concerted activity. Consistent with this perspective, the Board will consider the employer's intent in maintaining a rule to be immaterial. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the NLRB will carry its burden, even if the employer sets forth a contrary, non-coercive interpretation of their rule that is also reasonable.
That said, the Stericycle standard explicitly permits an employer to rebut the presumption that a rule is unlawful by proving that the rule advances a legitimate and substantial business interest that cannot be achieved by a more narrowly tailored rule. To state the obvious, this new ruling tips the scales of justice in the employee's favor.
To put the Stericycle decision in context, some companies maintain policies that require confidentiality with respect to investigation of workplace complaints, and such policies may now run afoul of the NLRA under the Stericycle ruling. For example, if a company's anti-retaliation policy contains language that requires all parties involved in an investigation into a complaint of unlawful behavior such as discrimination or harassment to keep that complaint, the investigation, or the resolution of that complaint confidential, that policy could be read to forbid an employee from engaging in protected concerted activity.
Other policies that should be examined in light of this decision include, but are not limited to, those relating to an employee's technology/electronic device use; personal conduct; conflicts of interest; harassment complaint, investigation, and prevention; electronic communications; use of camera and video recording; and discrimination.
Notably, the Stericycle decision will be applied retroactively, meaning that current employment policies that violate the ruling must be revised immediately.
What Should Employers Do Now?
- Review your employee handbook and policies: Employers should review their Employee Handbooks and standalone employee policies in order to ensure that they do not have the unlawful effect of dissuading employees from engaging in organizing activity. Handbooks and policies should be read broadly, and from the perspective of the affected employee, to ensure compliance with the NLRB's new ruling.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
