The Association highlighted to the National Labor Relations Board the importance of employer workplace rules and policies to establish a positive work environment, and urged the Board to avoid returning to being the “handbook police” by over-scrutinizing such rules and policies.
Traditionally, workplace rules and policies are invalid if they "impermissibly restrict" employees’ rights to communicate with each other and engage in collective action. The key word there is "impermissible" – as determined by the NLRB. During the Obama administration, the Board nullified countless seemingly innocuous workplace rules on the basis that an employee might read them in a way that would restrict such rights. For example:
- Rules requiring employees to “behave in a professional manner” and “maintain a positive work environment;”
- Rules prohibiting employees from making false statements about the company;
- Rules encouraging employees to “work harmoniously” and to conduct themselves “in a positive and professional manner;”
- Rules prohibiting a “discourteous and inappropriate attitude or behavior towards other employees;” and
- Rules requiring employees to keep customer information secure and confidential.
In our amicus brief, we argued strongly against returning to an overzealous approach, urging the Board to instead adopt a standard under which workplace rules are found to be invalid only where they are applied in either a discriminatory manner or in a way that actually restricts an employee’s rights to concerted activity. Moreover, we advocated that workplace rules be invalidated only where the Board's concerns substantially outweigh the legitimate business justifications for the rule or policy. Our brief was submitted in response to the Board’s solicitation of amicus briefs in Stericycle, Inc., 371 NLRB No. 48 (2021) asking stakeholders to weigh in on how the Board evaluates employer workplace rules and policies.
The Association emphasized the numerous important functions workplace rules and policies serve, including providing workplaces free from harassment and discrimination and ensuring productivity, workplace safety, and professionalism, among other functions. The brief also stressed that many of these rules and policies are required by anti-discrimination and anti-harassment laws such as Title VII and workplace safety laws such as the OSH Act.
Employers can expect to see their handbooks placed under the microscope with unfair labor practices for industry-accepted rules and policies if, as expected, the Board returns to the approach used by the Obama-era Board. Employers should begin reexamining their workplace rules and policies to ensure they are written to limit any possible interpretation of restrictions on concerted activity, to the extent possible. This might include providing disclaimer language making it clear the rule in question is not meant to restrict any employees’ rights under the NLRA.