BOP NEWSLETTER • January 2024

‘Tis the Season: Unwrapping HR During the Holidays

You may have noticed that 2023 was a big year for employment laws across the nation. We saw an unprecedented number of changes from both the federal and state governments, and we revamped more policies than ever before to ensure compliance with our materials. Whew! It was a lot for everyone!

One particular change has some feeling frustrated and confused and questioning what’s going on. We’re talking about the National Labor Relations Board’s (NLRB) ruling in Stericycle, Inc. This alone generated changes to 7 different Bent Ericksen policies! In this month’s newsletter, we want to break this down and provide some insight into what it means for your business going forward. 

The Super Short Summary

The NLRB made a major decision in 2023. This significantly impacts HR policies on employee behavior and employee interactions with others. All employers and managers need to evaluate their policies and make necessary updates. Bent Ericksen clients already have updated language in their HR Director account, as of December 2023. However, additional policy changes may be necessary for custom policies (see “What Do We Do Now? below).

This is a federal change that applies to all businesses in all industries, with 1 or more employees. No business is immune from these changes.

Background

The National Labor Relations Act (NLRA) applies to all unionized workplaces and, in some respects, all non-unionized employers. One area that applies to all employers 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 for employees to discuss their wages, working conditions, and benefits with one another. Also, it gives them the right to discuss unionization. All of 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 Case & Decision

That brings us to Stericycle, Inc. whose workplace policies were challenged, and the subsequent NLRB ruling effectively changed the landscape going forward for everyone. 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. In an effort to not get 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 was a relatively low bar to reach. 

In a much less employer-friendly ruling in the Stericycle case, the standard has flipped in favor of the employee. For an employee to challenge an employer’s workplace policy, an employee need only show that a policy has a reasonable tendency to chill 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 could reasonably interpret the policy to have a coercive meaning, they will have met their burden of proof, thereby making the rule presumptively unlawful. 

The burden then shifts to the employer. The employer 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, possibly impossible, bar to reach. As one lawyer we know said, “good luck with that.”

What Do We Do Now?

We, along with labor attorneys nationwide, are now advising a careful re-read of the employer policies through the lens of the Stericycle ruling. In other words, carefully consider all the ways that employees can engage in Section 7 rights and then scrutinize the language used in any policy. Could an employee interpret the language used in those policies as infringing on their rights? If the answer is “maybe” or “yes,” then those policies should be removed or re-written to be safe. 

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 businesses 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 with one another, their managers, and the public, whether in-person or online. 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. A common way to narrowly tailor policies is to provide examples, which can carve out things the policy is not talking about, and highlight the things the policy is talking about. 

If you are a Bent Ericksen & Associates’ client, here is a list of policies that may have custom language that you wrote or added that could be problematic now:

• Our Philosophy
• Mission/Vision/Values Statements
• Employer-Employee Relations
• Conduct Guidelines
• Computer, Email, and Internet Usage
• Social Media
• Personal Telephone, Cell Phone and Smartphone Use

In addition, you may have added your own custom policies of which we are not able to provide exact policy names. 

We strongly encourage you to review any custom policies that address employee attitudes, behavior, professionalism, etc. If you believe modifications are needed, you may make them yourself in the HR Director Policy Editor, or work with an HR Specialist on compliant language. If you have questions or concerns, please contact us for further assistance.