August 02, 2023

NLRB Issues New Rule on Employers’ “Chilling” Workplace Policies

Since 2014, the National Labor Relations Board has modified at least four times the rule or standard it will use to determine if an employer’s workplace policy violates the National Labor Relations Act (NLRA).

What’s this all about? Section 7 of the NLRA provides all non-supervisory employees, regardless of whether they are represented by or members of a union, the right to act in concert for their mutual aid and protection. Practically applied, they have the right to talk to one another about their wages, hours, or conditions of employment.  Section 8(a)(1) of the NLRA prohibits employers from interfering with employees’ exercise of their Section 7 rights.

In this case, one of several allegations was that “the Company engaged in coercive conduct and violated Section 8(a)(1) by maintaining policies and rules that interfered with Section 7 rights.” The policies did not explicitly prohibit any Section 7 activity. They were “facially neutral.” The legal challenge was that they had a “chilling effect” upon employees exercising their Section 7 rights. Some examples included:

  • Retaliation – “All parties involved in the investigation [of a harassment complaint] will keep complaints and the terms of their resolution confidential to the fullest extent practicable.”
  • Electronic Communication Policy – “…personal telephone calls and e-mails should be infrequent and brief, and limited to urgent family matters.”
  • Personal Conduct – “Conduct that maliciously harms or intends to harm the business reputation of Stericycle will not be tolerated. ”
  • Conflict of Interest – “An activity that . . . adversely reflects upon the integrity of the Company or its management.”

How would these “chill” employees’ from exercising their Section 7 rights
? Let’s say an employee wants to talk to coworkers about getting together to ask for a raise or forming or joining a union because the employee feels management does not listen and the Company underpays them. Might the employee not do so for fear of being seen as harming the company’s reputation or adversely reflecting upon the integrity of the Company or its management?

That is the question the NLRB addressed. Under the new standard:

  1. “If an employee could reasonably interpret a rule to restrict or prohibit Section 7 activity…the rule is presumptively unlawful. That is so even if the rule could also reasonably be interpreted not to restrict Section 7 rights and even if the employer did not intend for its rule to restrict Section 7 rights. ” (emphasis added)
  2. Then, the employer “can rebut the presumption that a rule is unlawful by proving that it advances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule.”

Bottom line
. As of today, an employer must “narrowly tailor its rules to promote its legitimate and substantial business interests without unnecessarily burdening employee rights.”

How do you do that
? The NLRB writes, “In interpreting rules from the perspective of a reasonable employee…recognize that a typical employee interprets work rules as a layperson rather than as a lawyer.” Re-read your related policies. Do they suggest or infer that employees should not engage in Section 7 activities? If so, consider modifying the policy to focus on your business goals and objectives. And talk to your company’s legal counsel!