On
The Board's ruling calls into question all existing work rules, and employers should immediately review their employee handbooks and policies to determine whether they comply with the new standard.
WHAT HAPPENED?
In the 2017 Boeing decision (later revised as
In this week's
The Board found that the standard allowed employers to adopt overbroad work rules that chill employees' rights. Overruling that standard, the Board held that work rules should be considered on a case-by-case basis.
Under this new standard, rules that have a reasonable tendency to chill employees from exercising their Section 7 rights are presumptively unlawful. The
The new standard applies retroactively, so existing work rules will be evaluated under the
Rather than determining whether the work rules at issue are lawful, the Board sent the case back to the administrative law judge to allow the parties to present argument and evidence under the new standard.
WHAT EMPLOYERS SHOULD DO NOW
Although the Board did not explain how employers should revise their rules to comply with the new standard, we anticipate the following types of rules could be found unlawful:
- Personal conduct rules, such as those requiring employees to "behave in a professional manner" or refrain from making false statements about the employer;
- "No camera" and "no recording" policies;
- Anti-loitering rules that deny off-duty employees access to the workplace; and,
- Policies that mandate employees keep their workplace complaints confidential and/or require them to only discuss such complaints with HR.
Employers should work with outside legal counsel to review their existing employee handbooks and policies to ensure compliance with the new standard.
Originally published
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