The National Labor Relations Board (“NLRB”) issued a decision adopting a new legal standard for evaluating whether workplace rules – such as handbook policies – violate Section 8(a)(1) of the National Labor Relations Act (the “Act”), which prohibits employers from interfering with employees’ rights to engage in protected concerted activity (e.g., organizing, discussing workplace concerns with co-workers, etc.).

Under the old standard, determining whether a facially neutral workplace rule was unlawful under Section 8(a)(1) turned on two factors:

  1. the extent to which the rule could burden employees’ rights under the Act; and
  2. the employer’s legitimate business interests in maintaining the rule.

Under the new standard, a policy is presumed to violate the Act if it has a “reasonably tendency” to discourage employees from exercising their right to engage in protected concerted activity, and the presumption can only be rebutted if the employer can prove that the rule advances a legitimate and substantial business interest and that such interest cannot be advanced with a more narrowly tailored rule.

The adoption of this new standard is likely to result in closer scrutiny by the NLRB of handbook policies that could hinder protected activity, such as confidentiality, social media, and/or workplace recording policies.

Employers should review their handbooks and consider revising policies that could be considered overbroad from an NLRB standpoint.

You can read the full decision here.