The NLRB Handbook Police Are Back

The NLRB issued a long-expected decision today in which it adopted a new (old), stricter framework for evaluating employer workplace rules and policies, under which many such rules and policies will likely be considered presumptively unlawful moving forward. 

Background: In 2004, the Board ruled in Lutheran Heritage Village-Livonia that employer workplace rules and polices are presumptively unlawful if a hypothetical worker would “reasonably construe” the rule to chill or interfere with rights to protected concerted activity. Under the Obama-era Board, this standard was used broadly to invalidate even the most innocuous of handbook rules, such as “maintain a positive environment” or “behave in a professional manner.” In 2017, the Trump-era Board ditched Lutheran Heritage and created a new, more balanced framework in Boeing under which employers’ reasons for promulgating rules were balanced against potential impact on NLRA rights.  In our amicus curiae brief filed in the current case, HR Policy argued strongly for preserving the Boeing rule.  

Today’s decision in Stericycle, Inc. nixes the Boeing framework and returns to a stricter standard that “builds on and revises” the Lutheran Heritage approach. The Board claimed that the Boeing standard permitted employers “to adopt overbroad work rules that chill employees’ exercise of their [NLRA] rights” (without providing specific examples) and fails to give proper weight to the “economic dependency of employees on their employers.” (It is worth noting that the ALJ in Stericycle found the employer’s policies unlawful even under the Boeing framework, demonstrating how eager the current Board is to latch onto any vehicle it can to reverse the previous Board’s rulings. The Stericycle handbook policies at issue can be found on pages 40 and 41 of the decision.)

Under the new standard, workplace rules and policies are presumed unlawful if an “economically dependent” employee subject to the rule and contemplating protected concerted activity could “reasonably interpret” the rule to interfere with their right to protected concerted activity. The employer can rebut this presumption by showing that the rule advances “a legitimate and substantial business interest” and that it cannot advance that interest with a more narrowly tailored rule. 

“Economically dependent employee:” In the decision, the Board generally defines an “economically dependent employee” as one who is particularly dependent on their job – in other words, is especially averse to actions that might get them disciplined or fired, and who accordingly “is readily inclined to avoid violating a rule, and so readily inclined to interpret it more broadly to restrict or prohibit [protected activity]. By viewing challenged rules through this lens, the Board is essentially (and unsurprisingly) announcing that it will be evaluating such rules with the strictest microscope possible – in other words, if a rule could in any possible way chill employee NLRA rights, it is unlawful. 

Outlook: The Board declined to offer specific examples of lawful and unlawful rules under the new standard, or even discuss it in application to the facts of the actual case at issue (which went largely unmentioned in the decision). Employers are therefore left to try to figure it out themselves – a continuing theme at the Board. In general, employers should take care to ensure that their rules – both as written and as enforced – are as neutral as possible.  Meanwhile, this is one of several areas of Board law where how the standard is enforced, coupled with the enthusiasm of the General Counsel to prosecute employer labor practices, is probably more significant than the standard itself.