The National Labor Relations Board recently issued a decision that changes the standard for assessing whether facially neutral work rules (rules that do not expressly restrict employees' protected concerted activity) violate the National Labor Relations Act (NLRA). Under the old standard, the Board designated a certain category of work rules that are always lawful to maintain. In plain English, this means that the Board now considers whether a "neutral" rule could still be understood to violate the law even if that was not the express intent.
For example, under the new standard, the following policy could be unlawful: Conduct that maliciously harms or intends to harm the Company's business reputation will not be tolerated. You are expected to conduct yourself and behave in a manner conducive to efficient operations.
Why was it potentially unlawful? The policy makes no exception for statements that would be protected by the NLRA, which would protect false or negative statements relating to the right to organize or to concerted protest of workplace issues.
Under the new standard, the NLRB's General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden. If the General Counsel does so, then the rule is presumptively unlawful. However, the employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, then the rule will be held to be lawful.
Employers should review their handbooks and policies to determine whether their work rules could reasonably be interpreted (even implicitly...) as restricting employees' protected concerted activity under the NLRA. This assessment must include whether the employer can articulate a legitimate and substantial business interest for the work rule.
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.
