On August 2, the National Labor Relations Board (NLRB) established a new standard for evaluating facially neutral work rules in both unionized and nonunionized workplaces with its decision in Stericycle, Inc., 372 NLRB No. 113 (2023). This new standard significantly favors employees and unions, overturning the more employer-friendly precedent that had been in place since 2017.
The Board determined that any work rule with the tendency to "chill" employees from exercising their collective rights is presumed unlawful. To assess whether a work rule has this chilling effect, the Board will interpret the rule from the perspective of a reasonable employee “who contemplates engaging in [concerted] activity” but fears discipline or discharge.
John Sarno, president of the Employers Association of New Jersey (EANJ), expressed concerns about the lack of guidance provided to employers on how to craft rules that comply with the new standard. Sarno cited a common policy found in Employee Handbooks: "If you are subject to harassment you must report it to Human Resources. Any investigation should be treated as confidential." He questioned its legality under the National Labor Relations Act, stating, "I doubt that this policy is lawful because under the National Labor Relations Act, an employee can report harassment to co-workers and third parties. Employees also have the right to exchange information with pretty much anyone that they want too. Thus, this policy would likely be interpreted as chilling worker rights."
Sarno further noted that workers have an absolute right to discuss their wages with others, including co-workers, making confidentiality policies potentially unlawful as well. "There are dozens of standard policies which need review and likely revision," he added.
EANJ plans to convene a live three-hour seminar on September 19th to cover these new legal standards and additional topics. EANJ is a nonprofit trade association focused on improving employer-employee relations and facilitating information exchange among employers. It does not provide legal services or opinions nor engage in legal practice.
