New NLRB Handbook Rules Means Many Employer Handbook Provisions Are Illegal

NLRB has issued a new standard for evaluating employer work rules and employer handbooks. It applies to non-union and union workplaces that are covered under the National Labor Relations Act, which means most employers are covered. Under the new standard, the person challenging a rule or handbook provision must prove that the challenged rule has a reasonable tendency to chill employees from exercising their rights to engaged in concerted activity to discuss or change working conditions. If so, then the rule is presumptively unlawful. 

However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.

This is a sea change from the prior standard, and it will make it much easier for employees to challenge rules. The new standard appeared in a case where the following rules were successfully challenged:

• Confidentiality of investigations
• Limiting personal calls and emails to family emergencies
• No personal electronic devices or cell phones to be kept in lockers and used only on breaks
• No behavior that harms the business reputation of the company
• No activity that adversely reflects on the integrity of the company
• No photos
• No recordings

If these sound familiar, it's because similar rules are in many company handbooks. If they're in yours, you may be able to file an NLRB charge against employer if you want to challenge the rule.

The Board explained how to evaluate a "chilling effect":

In determining whether an employer’s rules or policies restrict or chill employee’s rights to engage in protected activity, one must consider if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; (3) or the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village—Livonia, 343 NLRB 646, 646–647 (2004). Where a rule or policy explicitly restricts Section 7 activity or can be reasonably read to restrict such activity, the Board is required to evaluate the employer’s asserted business justification “[t]o strike a proper balance between the employees’ rights and the Respondent’s business justification.” Caesar’s Palace, 336 NLRB 271, 272 (2001). The Board must accommodate the respective rights of the parties “with as little destruction of one as is consistent with the maintenance of the other.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

I know. Blah, blah, blah. What this means is if you would think a rule prohibited you from engaging in discussions or activities with coworkers regarding working conditions, it's probably illegal. If the rule was made because of union activity or because employees were discussing a potential union, it's probably illegal. If the rule has been applied to restrict employees' ability to discuss or take action together regarding working conditions, it's probably illegal. 

Some rules that may well be affected by this ruling, in addition to the ones I mention above, include:

• Not saying negative things about the company
• Restricting social media use and comments about the company
• Limiting or regulating the ability of employees to make safety complaints
• Restricting meetings or discussions with coworkers
• Restricting the circulation of petitions
• Prohibiting or limiting comments to the media or government agencies
• Prohibiting insubordination
• General civility rules

You don't have to be disciplined under these rules in order to challenge them. So if you think a rule is illegal, you can contact the NLRB about it. If you have been fired for violating a rule you think may be illegal, especially if you were fired for discussing working conditions with coworkers, contact an employee-side employment lawyer in your state about your rights.