The National Labor Relations Board (NLRB) has adopted a new standard for determining whether an employer’s policy violates Section 7 of the National Labor Relations Act (NLRA). The NLRB began applying the standard immediately.
The details
Background
Under Section 7 of the NLRA, employees have the right to act together, with or without a union, to improve wages and working conditions, and to discuss wages, benefits, and other terms and conditions of employment. The NLRB’s interpretations of how employer policies may violate Section 7 protections have changed over the years.
New standard
The NLRB recently announced that it is adopting a new standard for reviewing employer polices that builds on and revises a standard that was adopted during the Obama Administration but was later replaced during the Trump Administration.
Under the new standard (see NLRB Case Number 04-CA-137660 ), the NLRB will:
- Analyze whether a challenged work rule has a reasonable tendency to chill/discourage employees from exercising their Section 7 rights; and
- Interpret the rule from the perspective of a reasonable employee who is economically dependent on their employer (and thus inclined to interpret an ambiguous rule to prohibit protected activity in which they would otherwise engage).
If it is shown that an employee could reasonably interpret a rule to restrict or prohibit Section 7 activity, the rule will be considered presumptively unlawful even if:
- The rule could also reasonably be interpreted not to restrict Section 7 rights; and
- The employer didn’t intend for its rule to restrict Section 7 rights.
However, an employer may rebut that presumption by proving that:
- The rule advances a legitimate and substantial business interest; and
- The employer is unable to advance that interest with a more narrowly tailored rule.
Next steps
- With the help of legal counsel, make sure policies are drafted carefully and narrowly, providing sufficient details and context to make it clear that the employer’s rules don’t infringe on protected activity.
- Watch for additional guidance from the NLRB.
Please contact your ADP® Service Representative with any questions.
Thank you,
ADP