NLRB Decision Will Make It More Difficult For Employers To Provide Safe, Hostile-Free Workplaces
Last week, the National Labor Relations Board (NLRB) issued a decision that will put at risk employers’ common sense workplace policies.
As labor lawyers at one firm explained, under the NLRB’s new framework, a workplace rule is now unlawful if the rule is “reasonably construed to chill employees from exercising their right” to unionize. Additionally, the burden is now on the employer to show the work rule is narrowly tailored to protect its substantial and legitimate business interests.
The lawyers go on to explain, “This new standard removes the process of placing rules in certain categories, like rules related to investigations and confidentiality. Under the NLRB’s previous standard, rules placed in these categories were always lawful to maintain. Now, the [NLRB] general counsel must simply prove that any challenged work rule has a reasonable tendency to chill employees from exercising their rights. If this is done, then the rule is presumptively unlawful.”
The Coalition for a Democratic Workplace (CDW), which MSCI is a member of, said the NLRB’s “decision makes it nearly impossible for employers across the country to provide safe, hostile-free workplaces for workers.” CDW Chair Kristen Swearingen also argued the NLRB ruling inserts “instability and confusion into the workplace and created risks for employers attempting to implement common sense policies that protect workers, customers, and the community.”
The NLRB should have stuck with its previous standard, Swearingen said, which ensured the board had consider both the employer’s legitimate justifications and the potential impact on workers’ NLRB rights when assessing a facially neutral policy, rule, or handbook provision.