NLRB targets more restrictive standard for handbooks, work rules

The National Labor Relations Board’s (NLRB) upcoming decision in Stericyle, Inc., may affect how it assesses the lawfulness of employer work rules and handbook policies in both union and nonunion workplaces. The Board’s General Counsel has requested that it adopt a more restrictive standard. The Board also invited briefing from the public on the issue of whether changes to the standard should be made.

3 categories

Currently, the Board assesses employer rules and policies by placing them in one of three categories:

• Category 1: Rules that either do not interfere with employees’ right to discuss terms and conditions of employment (“protected rights”) or for which the possibly adverse impact on protected rights is outweighed by the employer’s justifications for the rule. These rules are lawful.
• Category 2: Rules that should be scrutinized on a case-by-case basis about whether they would interfere with protected rights, and, if so, whether the employer has a legitimate justification for the rules. These rules may be lawful or unlawful, depending on the circumstances.
• Category 3: Rules that prohibit or limit protected rights and for which the adverse impact on protected rights outweighs the employer’s justification for the rules. These rules are unlawful.

More restrictive standard

Since adoption of the above standard in 2017 in Boeing, Co., the NLRB’s makeup has changed. The Board members are expected to adopt a more restrictive standard for assessing employee handbooks and work rules.