In August of 2023, the National Labor Relations Board (the “NLRB”) issued a decision, which adopts a new standard for evaluating work rules such as handbook policies and procedures under Section 7 of the National Labor Relations Act (the “NLRA”). This decision changes how employers should draft and revise their employee handbooks.
What does Section 7 of the NLRA Protect?
Section 7 of the NLRA protects activities by a group of employees communicating about wages, hours or working conditions. For example, if a group of two or more employees discuss unsafe working conditions, complain about the workplace, or compare their pay, those are protected concerted activities. Importantly, Section 7 covers both unionized and non-unionized workforces. Under the NLRA, an employer is not permitted to fire, threaten, or take disciplinary action against employees for participating in concerted activities. The NLRB often looks at workplace policies to determine whether employees’ Section 7 rights are being threatened.
What was the standard prior to this decision?
Since 2018, the NLRB has held that, in order to determine whether a workplace policy violated Section 7, it would look at the potential impact on the employee’s rights and weigh it against the employer’s justification for the policy. As a general rule, so long as the employer’s justification for the policy was reasonable, then it was likely legal. This interpretation allowed employers to have policies that, for example, required confidentiality for all company investigations, or policies that required employees to have “a good attitude” and imposed discipline on what it considered to be “insubordinate activity.”
What has changed?
With this new decision, if an employee can show that the policy in question has a “reasonable tendency” to stop employees from exercising their right to engage in a protected concerted activity, then the rule is presumed to be illegal. The only way an employer can rebut this is by showing that: (a) the policy is written in a way that advances a legitimate and substantial business interest; and (b) that the employer would be unable to advance that interest if the policy was written any other way.
What should employers do?
The NLRB didn’t explicitly outline how employers should draft their policies to avoid violating Section 7. This new interpretation would potentially affect any policy that dictates or suggests how employees act or speak in the workplace. The types of policies that could be considered illegal include, but aren’t limited to: policies that restrict or prohibit communication between employees, policies that require complete confidentiality during investigations or complaints, or policies that flatly prohibit “insubordination,” if these policies contain no explanation or context.
When drafting new policies, it is important to examine the language to determine whether a particular directive would deter an employee from communicating about protected activities. Employers should make sure that, if they have policies that require confidentiality or restrict communication in some way, they do not make them overly broad. The policies should avoid words like “always” or “never,” and should try not to prohibit completely a type of communication. These policies should also include the company’s reasoning as to why these rules are in place.
Here at Gravel & Shea, we are well versed in providing comprehensive employee handbook reviews to make sure that they are legally compliant and fit the needs of every company, no matter the size. No handbook? Now is the perfect time to get one! We also draft handbooks that perfectly fit a company’s needs and culture.
Please contact Heather Hammond (firstname.lastname@example.org) at Gravel & Shea PC if you have questions or would like assistance.