Page 19 - BusinessWest September 4, 2023

OFFICE FURNITURE RETAILERS LISTED ALPHABETICALLY
COMPANY
CHIEF EXECUTIVE
SERVICES
PRODUCT LINES
BROADWAY OFFICE INTERIORS
90 Tapley St., Springfield, MA 01104
(413) 734-8911; www.broadwayoffice.com
CMC SHADES AND SPECIALTIES
135 Denslow Road, East Longmeadow, MA 01028 (413) 224-2456; www.cmcshadesandspecialties.com
CONKLIN OFFICE FURNITURE
75 Appleton St., Holyoke, MA 01040 (413) 315-6777; www.conklinoffice.com
CONTE OFFICE INTERIORS
25 Miles St., Greenfield, MA 01301 (413) 774-7581; www.conteoffice.com
DANCO MODERN
10 West St., West Hatfield, MA 01088 (413) 247-5681; www.dancomodern.com
DISCOUNT OFFICE FURNITURE INC.
2131 Riverdale St., West Springfield, MA 01089
(413) 737-0991; www.discountofficefurnitureinc.com
INTERSCAPE COMMERCIAL ENVIRONMENTS
10 Waterside Dr., Farmington, CT 06032 (860) 882-5903; www.interscape.com
LEXINGTON GROUP INC.
380 Union St., West Springfield, MA 01089 (413) 746-3064; www.lexingtongroupinc.com
RED THREAD
1350 Main St., Suite 1108, Springfield, MA 01103 (413) 736-1802; www.red-thread.com
Continued from page 18
ment. 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 (Mar- vin 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 stan- dard, 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 Sec- tion 7 rights. These put the following types of policies at risk:
• Restricting employee use of social-media plat- forms and communication;
• Demanding confidentiality of investigations and other workplace discussions;
• Restricting the use of cameras or recording devic- es in the workplace;
• Prohibiting negative comments or limiting an
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SEPTEMBER 4, 2023 19
employee’s right to criticize the employer’s manage- ment, products, or services;
• Promoting civility in the workplace and/or prohib- iting 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 requir-
ing 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 sub- stantial 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 particu- larly difficult for employers to establish, as most work rules presumably are put in place to advance a busi- ness-based interest. However, succeeding on the sec- ond prong will not be as simple. How often can it be argued that the goal of a work rule could be accom- plished 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 busi- nesses 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 com- ply 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. BW
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; jgannon@ skoler-abbott.com