Most employers utilize handbooks to familiarize employees with basic workplace rules and procedures. Because of the ongoing changes in California’s labor and employment laws, annual handbook reviews are typically required to prevent a handbook from becoming outdated. A review is particularly recommended this year in light of the National Labor Relations Board’s decision last month restricting certain codes of conduct and civility rules.
Stericyle, Inc. and Teamsters, Local 628
In Stericyle, Inc. and Teamsters, Local 628, the Board adopted a new legal standard to decide whether an employer’s work rule interferes with an employee’s right to join a union or otherwise join with co-workers to change pay and working conditions. Those rights, codified in Section 7 of the National Labor Relations Act, apply to nearly all employers (union or not) if they engage in interstate commerce. Under Stericcyle, the Board will assume a workplace rule is unlawful if – from the perspective of an employee – the rule tends to interfere with such rights. An employer can rebut that assumption, but only by showing that the rule advances an important interest and cannot be more narrowly tailored.
The dispute arose in connection with a broad-ranging complaint against Stericycle for refusing to bargain with the union representing its employees, failing to provide the union with certain workplace information in response to its requests, and allegedly maintaining rules which interfered with employee’s Section 7 rights. The rules at issue include the following:
- Conduct that maliciously harms the reputation of the Company will not be tolerated
- An activity that adversely reflects upon the integrity of the Company may be grounds for discipline
- Team members are prohibited from disclosing complaints and the terms of their resolution
- Team members cannot take cell phone pictures at work without permission
The Board did not expressly invalidate such rules, but instead sent the case back to the administrative judge who first heard the dispute, instructing him to apply the new standard in deciding the legality of the rules.
Under the former standard, known as the Boeing rule, such rules would have been examined under a balancing test in which the Board was required to review both the potential impact on Section 7 rights and the legitimate business reasons for the rule. The balancing is now eliminated from the analysis. The Board reasoned that its new rule is consistent with the long-established practice of construing ambiguous rules against an employer.
The long-term impact of Stericycle is unclear as it is subject to appeal, and even if not appealed, could be revised in the future by a new Board. For now, though, it remains in effect. Employers should accordingly carefully review their handbooks this year to assess whether a rule or policy should be modified or more narrowly tailored. Employers should also add language to a Code of Conduct policy explaining that it is not intended to chill Section 7 rights.
