On Aug. 2, the National Labor Relations Board (NLRB) set a new standard to evaluate facially neutral work rules in union and nonunionized workplaces when it issued a much-anticipated decision in Stericycle, Inc., 372 NLRB No. 113 (2023).
The new standard significantly favors employees and unions and overrules the more employer-friendly precedent in place since 2017.
The Board held that a work rule that has the tendency to “chill” employees in the exercise of collective rights is presumed unlawful. In determining whether a work rule has the tendency to chill employees from their rights, the Board will interpret the rule from the perspective of a reasonable employee “who contemplates engaging in [concerted] activity” but who fears discipline or discharge.
According to John Sarno, president of the Employers Association of New Jersey, the Board's decision provides little, if any, guidance to employers about how to craft rules that will satisfy the new standard.
Sarno points to the following standard policy contained in an Employee Handbook:
If you are subject to harassment you must report it to Human Resources. Any investigation should be treated as confidential
"I doubt that this policy is lawful because under the National Labor Relations Act, an employee can report harassment to co-workers and third parties. Employees also have the right to exchange information with pretty much anyone that they want too. Thus, this policy would likely be interpreted as chilling worker rights," he says.
Sarno also points out that workers have an absolute right to talk to others, including co-workers, about their wages, meaning that those confidentiality polices are also unlawful.
"There are dozens of standard polices which need review and likely revision," he adds.
EANJ is convening a live 3-hour seminar on September 19th to cover the new legal standards and much more. Click here.