In a 3-1 ruling on August 2, 2023, the Democratic-majority National Labor Relations Board (“NLRB”) adopted a new standard to examine workplace rules and handbook policies. The new rule applies to employers in both union and non-union workplaces. Under the new standard, employer rules and policies must be narrowly tailored to advance legitimate and substantial business interests. Irrespective of the employer’s intent, a workplace rule or policy will now be interpreted by the NLRB utilizing the perspective of an employee who is economically dependent upon the employer and contemplates engaging in concerted activity. If, under this perspective, the employee could reasonably interpret the rule to have a coercive meaning, then the rule is unlawful even if a contrary, noncoercive interpretation is also reasonable. The employer can only prevail if it establishes both that the rule advances legitimate and substantial business interests, and that such interest cannot be advanced with a more narrowly tailored rule.
The NLRB decision focused on rules related to workplace conduct, conflicts of interest, and confidentiality of harassment complaints. As noted by the dissent in this opinion, going forward great weight will be given to employee’s interpretations, making it very difficult, perhaps even impossible, for employers to defend their rules. The decision is Stericycle and Teamsters Local 628 , NLRB Case 04-CA-137660, 8/2/23.
Leech Tishman will be hosting a Fall 2023 presentation on the workplace impact of recent Supreme Court and NLRB decisions. Stayed tuned for more information.
If you have any questions about the NLRB rule and how it may affect you as an employer, please contact Philip A. Toomey, the National Chair of Leech Tishman’s Employment & Labor Practice Group. Philip can be reached at 424.738.4400 or ptoomey@leechtishman.com.