Most businesses can’t function without work rules that structure the workplace, keep employees and customers safe, clarify expectations, and provide a framework for a successful operation. But work rules can run afoul of employment laws, resulting in aggravation and lost money. Recently, the National Labor Relations Board (the NLRB) called into question a host of work rules that many businesses take for granted, including rules that protect confidentiality and employee conduct.
The NLRB did this while deciding a matter under the National Labor Relations Act (the Act). The Act, at its core, establishes that employees have the right to form or join labor unions, bargain collectively through such unions, and engage in activity for their “mutual aid or protection.” Irrespective of the existence of a labor union all employees have the right to act collectively regarding the terms and conditions of their employment, so long as they do not violate workplace rules that reasonably protect the employer’s business. The NLRB enforces the Act and sets rules that govern its enforcement.
Recently, the NLRB issued a ruling in Stericycle, Inc. and Teamsters Local 628 addressing the permissible scope of workplace rules under the Act. Stericycle did not change the substantive protections of the Act, i.e. prohibiting rules that may interfere with employees’ rights under the Act. Rather, Stericycle enforces the Act from the perspective of the employee, recognizing that employees depend on the employer for their income. Thus, employees may reasonably understand workplace rules to apply broadly and in a way that prohibits exercise of their rights under the Act. In short, the NLRB held otherwise legitimate rules may violate the Act if employees understand them to also limit employees’ rights under the Act.
Many businesses have rules that are commonsensical but may violate the Act under Stericycle. Stericycle referenced several examples, including: (1) personal conduct policies that, broadly interpreted, prohibit communication among employees disparaging the business; (2) policies prohibiting cameras and recording devices; (3) policies requiring confidentiality of harassment complaints.
These rules serve legitimate purposes, but can be read to also prohibit conduct protected by the Act. So how do employers protect their ability to implement and enforce common workplace policies? The answer is careful drafting of rules that explicitly carve out protected conduct from conduct that is properly prohibited. By example, it is reasonable for a company to protect confidential information and privacy by prohibiting the use of cameras and video recordings. But the company violates the Act if it prohibits employees from recording interactions with management regarding discipline or workplace rules. A company could maintain a “no recording” policy, while excepting interactions dealing directly with the terms and conditions of employment, such as disciplinary interactions with Human Resources and performance evaluations.
Similarly, a rule ensuring confidentiality of sexual harassment complaints protects employees who have suffered harassment and enables victims to seek relief. But the NLRB found that a blanket confidentiality requirement goes too far and may be reasonably read to limit employees’ from engaging in communication protected by the Act.
The issues raised by Stericycle are not new. Rather, they reflect an increased scrutiny of traditional workplace rules by government agencies, courts, politicians, and employee advocates. Employers can and must regulate the workplace in the interest of their business. But they should do so in a way that is sensible and clearly within the permissible scope of the Act.
If you have employment law questions, contact Max Dehn at 216-621-7860.
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