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Modern Office

A New Chapter

By John S. Gannon, Esq.


Last month, the National Labor Relations Board (NLRB) issued a decision altering the standard used to determine whether employer handbook policies and work rules infringe on employee rights in the workplace. The NLRB will now use an employee-friendly test that asks whether workers could reasonably interpret the policy or rule as one that restricts rights protected under the National Labor Relations Act (NLRA), such as discussing wages and working conditions, or forming unions.

Put in plain, non-legalese terms, the decision significantly increases the likelihood that one or more of your handbook policies are unlawful in the eyes of the NLRB. It also applies to all private-sector employers — including those without a union presence. Violations can lead to federal penalties, lawsuits, and more. So now is as good a time as ever to review your existing employee handbooks and work rules in order to ensure compliance.



Over the years, the NLRB has used a medley of tests when reviewing employee-handbook provisions to determine if a violation exists. Traditionally, the test shifts from employee/union-friendly to employer/management-friendly depending on whether the majority of board members are appointed by a Democrat or Republican president.

“Put in plain, non-legalese terms, the decision significantly increases the likelihood that one or more of your handbook policies are unlawful in the eyes of the NLRB. It also applies to all private-sector employers — including those without a union presence.”

For example, in 2015, the ‘Obama board’ issued decisions and guidance suggesting that common and well-accepted work rules on topics like confidentiality and civility in the workplace (like rules prohibiting ‘picking fights’ and ‘insulting’ co-workers) were problematic. Then, in 2017, under the ‘Trump board,’ the NLRB essentially undid this by establishing an employer-friendly standard that “overruled past cases in which the board held that employers violated the NLRA by maintaining rules requiring employees to foster ‘harmonious interactions and relationships’ or to maintain basic standards of civility in the workplace.”


The Work-rules Saga Continues

On Aug. 2, the NLRB issued its latest decision in this long-running saga on how to evaluate whether employee handbook provisions and work rules are unlawful. In a case called Stericycle Inc., the board, which has tilted toward the left under President Biden, adopted a new test to use when workplace rules and policies are challenged on the grounds that they interfere with or restrict employees’ rights to join together and improve terms and conditions of employment. These rights are often referred to as ‘Section 7 rights,’ as they are protected by Section 7 of the National Labor Relations Act.

The Stericycle decision expressly overrules the previous standard set forth by the Trump board in 2017, and (not surprisingly) was decided on a 3-1 basis, with the lone Republican board member (Marvin Kaplan) dissenting.

In Stericycle Inc., the majority held that the prior standard established by the Republican-dominated Trump board permitted employers to adopt overly broad work rules that chill employees’ exercise of their Section 7 rights. Under the new Stericycle standard, employers can maintain workplace rules only if they are narrowly tailored to “advance legitimate and substantial business interests” and minimize the risks of interfering with workers’ Section 7 rights (i.e., the right to act together to improve the workplace).

Similar to the old test under the Obama board, employer rules and policies can (and likely will) be ruled unlawful if the NLRB believes that an employee can reasonably interpret them as restricting their Section 7 rights. These put the following types of policies at risk:

• Restricting employee use of social-media platforms and communication;

• Demanding confidentiality of investigations and other workplace discussions;

• Restricting the use of cameras or recording devices in the workplace;

• Prohibiting negative comments or limiting an employee’s right to criticize the employer’s management, products, or services;

• Promoting civility in the workplace and/or prohibiting insubordination; and

• Restricting use of company communication tools such as email, Zoom, and Teams.

Under the Stericycle decision, an employer policy or rule is presumptively unlawful if an employee could reasonably interpret it to limits Section 7 rights. For example, if an employee reads a work rule requiring confidentiality of investigations as limiting their rights to discuss work-related issues with co-workers, it will likely be viewed as presumptively unlawful. The employer can then rebut that presumption by proving that (1) the work rule advances a legitimate and substantial business interest; and (2) the employer cannot advance that interest with a more narrowly tailored rule.

The first prong of this test does not seem particularly difficult for employers to establish, as most work rules presumably are put in place to advance a business-based interest. However, succeeding on the second prong will not be as simple. How often can it be argued that the goal of a work rule could be accomplished in a narrower fashion?

Consider a rule that prohibits workers from using video devices in the workplace. The business-based justification may be as simple as “we want to protect confidential information about how we do business from competitors.” This seems legitimate, to me, at least. But, moving to the second prong, could this goal be achieved by requiring employees to sign a non-disclosure agreement, or something of the like, that prohibits sharing confidential information or trade secrets in public domains? Probably.

As such, a handbook policy penalizing employees for taking unauthorized videos at work is probably invalid under the current ‘Biden board’ test of work rules.


Takeaways and What’s Next

In light of the new standard set forth by the NLRB in Stericycle Inc., both union and non-union businesses should expect more challenges to their work rules on Section 7 grounds. Employers and human-resources professionals should review their employee handbooks and work rules to make sure policies comply with the new NLRB standard. Businesses are also encouraged to consult with experienced labor and employment counsel, and keep an eye out for future updates.


John Gannon is a partner with the Springfield-based law firm Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on compliance with state and federal laws, including family and medical leave laws, the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act; (413) 737-4753; [email protected]

Law Special Coverage

Processes, Procedures, Practices, and Protocols Are Kings

By Tanzania Cannon-Eckerle, Esq.

In this new, enlightened era of increased employee rights and employee shortages, many employers are scared to terminate employees in fear of litigation — or of not having enough staff to enable the company to produce at the desired level.

The second question we can save for later, but I will mention now that additional widgets will most likely never justify the havoc that a toxic employee will create.

In my opinion, the answer to the first question is simple: do not fear what you cannot control. You cannot control who goes down to the courthouse to file a complaint. Just be prepared for the battle. So, yes, you can fire that guy (or girl, or them). The question is, should you?


Don’t Shoot Before Aiming — Consider Your Goal First

Don’t respond emotionally or consider someone else’s emotional response. Stop and think. Ask, why is this employee on the chopping block (i.e., what did they allegedly do)? How did they get there (was the proper process followed)? Who placed them there (who is bringing this up? Does the person have the authority to raise this issue? Anything nefarious here)?

Notice that I did not ask ‘who’ this employee is. We don’t assess the ‘who’ on the chopping block. It doesn’t matter who did it. It matters what was done, why it was done, whether it was actually done, and whether it rises to the level of termination.

Essentially, assess the conduct. What do you hope to attain by terminating this employee? A safer workplace? Good. To stop disruptions in operations or the beginnings of a hostile work environment? Good. Now prove it.


Prove It (in Preparation for the Battle)

If you can’t prove it, abort the mission. Go back to the drawing board. Go to plan B. Joking aside, preparing for appropriate employee terminations is a long game. It starts with consistent application of procedures, processes, policies, and practices. Probably the most important thing is documentation.

Consistent application of the ‘four Ps’ over time may take an investment of time and money into creating them if you don’t already have them, and training managers and supervisors in the art of holding employees accountable.

“Preparing for appropriate employee terminations is a long game. It starts with consistent application of procedures, processes, policies, and practices. Probably the most important thing is documentation.”

Tanzania Cannon-Eckerle

Tanzania Cannon-Eckerle

Among other things, there should be consistent application of all conduct and performance-related policies. There should be consistent application of all of the policies, procedures, and practices associated with managing human-resources functions such as leaves of absence and request for accommodations, as well as employee complaints made and investigated.

All of these should contain a component that enables tracking the underlying data and providing the ability to obtain and distribute the underlying information that supports assertions made. So you want to terminate an employee because he has been to work only seven out of 19 days, and on the seventh day he violated a safety policy and then stole your candy bar? You should be able to show documentation of these occurrences that were created in real time — including, of course, when the company had the initial conversation with him for being absent the first few times, checking to make sure it wasn’t actually a protected leave of absence.

Once you have the documentation, sit him down and tell him that he is being terminated from the job because of his inability to perform and because of his violation of the attendance policy. Have a witness. If you don’t have the documentation, sit him down, put him on notice that he is in the line of fire, and start documenting. Provide him with expectations, and then document it thereafter. Most likely, this will just delay the inevitable, but you never know. Regardless, at least you will have something to take with you into battle.

Make the Business Decision Informed by the Data, and Document It

Please know, you can terminate an employee for any reason at any time so long as it is not an illegal reason. That means you cannot terminate because of an employee’s protected status or activity or in a manner inconsistent with a collective bargaining agreement or other employment agreement.

As such, if you want to terminate a person for business reasons that have nothing to do with the person and everything to do with your business needs, that is OK too. But you should prove it. Do you have the data to back up your decision? You don’t have to have it, but if that person files a complaint, you will want it, and you will want to be able to attest that the business analysis was done prior to the termination. Otherwise, they will scream ‘pretext,’ meaning you just made that up. Plus, doing the analysis first may help you assess the risks of terminating an employee for business reasons.

There are always risks. Is it cheaper to keep him after assessing those risks, or not? That is a legitimate fiscal business concern. There are risks associated with not terminating employees as well. Be sure to document those, too — not just in the business case (e.g., budget concerns), but also in the ‘do I have enough to terminate this employee for conduct?’ case. Some examples: if I don’t terminate, there will be allegations that I did not maintain a harassment-free workplace; or, I terminated another employee for this same behavior last year, and there is no legitimate reason distinguishing this employee from being terminated for the same; or, he keeps violating safety procedures, and someone may get hurt.


Terminate with Grace and Pay What You Owe

Be respectful to all employees, including those who are coming and going. He knows what he did to get terminated (if you have done it right). There is no legitimate reason to be rude about it.

Terminating with dignity or grace does not mean that you should not terminate an employee. Once an employee gets to termination, he should have already had an opportunity to cure the conduct or behavior for which he is getting terminated. As such, by the time the writing is on the wall, he should not be surprised. If he is, that might partly explain why he is getting terminated.

Next, make sure you reach out to your employment counsel for assistance with properly preparing a termination package (necessary correspondence, pay requirements, and timing considerations). A misstep here can get you in hot water — triple hot water. Failure to pay an employee what is due at termination has no defense, and the remedy to the employee includes three times the wages due. Call your counsel before terminating.

I know this article is not going to make me popular among some folks. I am not trying to be cold. I am just being practical. Your employees are your life force. I get it. I am one. But they are also human capital. If you manage your human capital like you manage your non-human capital, then you should be able to terminate employees without fear.

Processes, procedures, practices, and protocols are kings. Remember, keeping a toxic employee is more costly, in a variety of ways, than the cost of defending a claim — that is, if you have your ducks in a row. So get your ducks in a row. Plus, the remainder of your staff will appreciate the decision. Heck, the terminated employee may appreciate it in time; sometimes it just isn’t a good fit. Cut them free to find their better role. In the case of the business decision, your shareholders or business partners will appreciate your fiscal responsibility.


Tanzania Cannon-Eckerle, Esq. is chief legal and administrative officer for the Royal Law Firm; (413) 586-2281.