The National Labor Relations Board (NLRB) made a major ruling in 2023 overturning previous, more employer-friendly decisions. This federal ruling applies to all businesses with one or more employees. The ruling significantly impacts HR policies on employee behavior and interactions with others, and understanding it is crucial to preventing future liability.
Background
The National Labor Relations Act (NLRA) applies to all unionized workplaces, but it has specific areas of application for nonunionized employers. One area that applies to all employers (union and nonunion) is Section 7. While there is a lot to this section, it mainly provides employees the right to engage in “concerted activities.” These activities include the right to discuss wages, working conditions, and benefits. Section 7 also gives them the right to discuss unionization. These rights are protected and employers can receive an NLRB lawsuit if an employee believes their rights have been infringed upon during employment.
The 2023 decision
That brings us to Stericycle, whose workplace policies were challenged, and the subsequent NLRB ruling effectively changed the landscape. The case revolved around allegations that Stericycle violated federal labor laws by restricting workers from discussing unionization and retaliating against employees advocating for union representation.
Previously, when the NLRB had to determine if a workplace policy violated employee Section 7 rights, they did so based on, among other things, a three-part standard established in an old ruling commonly referred to as Boeing. To avoid getting mired in details, just know that the Boeing decision was rather employer-friendly. For an employer to prevail in a lawsuit with the NLRB, the Boeing standard set the bar relatively low.
In a much less employer-friendly ruling, the standard has flipped in favor of the employee in the Stericycle case. For an employee to challenge a workplace policy, they need only show that a policy has a reasonable tendency to prevent employees from exercising their Section 7 rights. The NLRB will now analyze and interpret the policy from the perspective of an employee who contemplates engaging in protected concerted activity and is also economically dependent on the employer. The employer’s intent in maintaining such a policy is not even considered. If an employee can reasonably interpret the policy to be coercive, they will have met their burden of proof, thereby making the rule presumptively unlawful.
The burden then shifts to the employer, who may rebut that presumption by proving that the policy advanced a legitimate and substantial business interest and that the employer was unable to advance that interest with a more narrowly tailored policy. If the employer proves its defense, the policy will be found lawful to maintain, but this is likely a very high bar to reach.
Moving forward
HR and legal experts advise a careful reread of policies. Carefully consider all the ways that employees can engage in Section 7 rights and then scrutinize the language used. Here are a few examples of policy language that would need to be revisited:
- Expecting employees to be “positive,” or to maintain a “positive work environment”
- Prohibiting false, profane, or malicious statements toward or concerning the employer or its employees
- Requiring employees to behave in a “professional manner” to promote efficiency, productivity, and cooperation
- Not tolerating conduct that may harm the business’s reputation
- Restricting video and/or cell phone recording
These types of policies are often considered workplace “civility rules” and generally focus on how employees behave or communicate. Too often, these policies are broadly written. Going forward, employers should consider tailoring their policies more narrowly to avoid running afoul with the Stericycle standard.
Editor's note: This article appeared in the May 2024 print edition of Dental Economics magazine. Dentists in North America are eligible for a complimentary print subscription. Sign up here.
Rebecca Boartfield is HR compliance consultant and Tim Twigg is president of Bent Ericksen & Associates. For more than 30 years, the company has been a leading authority in human resources and personnel issues, helping dentists successfully deal with ever-changing and complex labor laws. To receive a complimentary copy of the company’s quarterly newsletter or to learn more, call (800) 679-2760 or visit bentericksen.com.
