The decision affects both unionized and non-unionized businesses. This new standard will assess whether or not a workplace policy has a “chilling” effect on the rights of employees under Section 7 of the National Labor Relations Act (“NLRA”).
Avoiding the “Chill” Factor
The NLRB’s decision opts for a more employee-friendly approach. Now, workplace rules will be examined under the standard of whether an employee would “reasonably construe” the workplace policy as chilling their protected rights under Section 7 of the NLRA.
Although almost any policy could be construed as having the “tendency to chill” employees from exercising their rights, employers in defending their policies will need to demonstrate that the workplace policy is fair and supports, as stated by the NLRB, a “legitimate and substantial business interest”.
The NLRB will consider factors such as the specific language of the policy and the employer’s interest, along with the specific industry or workplace in which the policy is maintained.
Handbook Section 7 Disclaimers
Although many handbooks contain disclaimer language concerning the intent to not interfere with an employee’s Section 7 rights, this may not be sufficient enough.
Employee Handbooks Now Under Scrutiny
This decision by the NLRB places many workplace policies under scrutiny, so it will be important for businesses to articulate why a certain policy advances a legitimate and substantial business interest that is unachievable with a more narrowly tailored policy. That and ensuring the policy is fair and also does not infringe on an employee’s Section 7 rights.
What Should Businesses Do?
The first thing a business should do is think they now don’t want an employee handbook. Handbooks are an important tool in enhancing employee engagement and yes, mitigating risk to a business. This NLRB rule is an opportunity for companies to review their handbook to ensure all suspect policies are either rewritten or eliminated altogether.
Let Marzano Human Resources Consulting help your business produce an employee handbook which will be fair and minimize scrutiny by the NLRB, or any other federal, state or local government agency. We have been helping businesses create new handbooks or edit current ones for a long time.