In 2004 the National Labor Relations Board articulated a new standard to determine when neutral workplace policies unlawfully interfere with an employee’s right to participate in in concerted activities pursuant to the National Labor Relations Act (“NLRA”). Under this standard, workplace policies were not lawful if the policies would be “reasonably construed” by an employee to prohibit NLRA rights.
This standard posed substantial problems for employers. For example, we watered down policies related to the use of social media both in and outside the workplace, and policies requiring appropriate workplace behavior.
The Board recently announced it has adopted a new test, examining (1) the nature and extent of potential impact on NLRA rights, and (2) legitimate justifications associated with the handbook policy. The Board also established three categories of rules to help provide greater clarity to employers and employees.
Category 1 includes policies that the Board designates as lawful because the policy, when reasonably interpreted, does not interfere with NLRA rights or the potential adverse impact on protected rights is outweighed by justifications associated with the rule. An example of this rule is requiring employees to abide by basic standards of civility.
Category 2 will include policies that warrant individualized scrutiny to determine whether or not they interfere with NLRA rights, and if so, whether adverse impact on employee conduct is outweighed by legitimate justifications.
Category 3 includes policies that are unlawful because they limit concerted activities. An example of this is a rule prohibiting employees from disclosing wages.
It is about time the Board took this sensible position. I often compare the workplace to a family. In my family, I do not allow the children to be inconsiderate of one another. Then why should I be compelled to accept this type of behavior in the workplace?
You can read the Board’s press release here: https://www.nlrb.gov/news-outreach/news-story/nlrb-establishes-new-standard-governing-workplace-policies-and-upholds-no