BOSTON — A reversal of course by the National Labor Relations Board has management-side lawyers and their clients scrambling to reassess work rules for whether they may now be deemed unlawfully to chill employee rights to engage in concerted activity.
A divided NLRB issued its highly anticipated decision involving Stericycle Inc. on Aug. 2. The decision announced a new standard on the question of whether an employer’s work rule that does not expressly restrict employees’ protected concerted activity under Section 7 of the National Labor Relations Act is nevertheless unlawful under NLRA Section 8(a)(1).
“[O]ur standard requires the General Counsel to prove that a challenged rule has a reasonable tendency to chill employees from exercising their Section 7 rights,” the Stericycle majority opinion states. “We clarify that the Board will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.”
Springfield, Massachusetts, labor lawyer Amy B. Royal says employers have their work cut out for them.
“Employers are going to have to look at any policies, handbooks and work rules that they have and ensure that they are narrowly tailored,” Royal says. “The ultimate burden on the employer is to demonstrate not just that they have a legitimate and substantial need for a particular work rule or policy, but that there’s no other way to accomplish this...
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