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The Risk of Requiring Employees to be Civil at Work

As published in Salinas Valley Business Journal, March 2024

The National Labor Relations Act (NLRA) protects the rights of non-managerial employees of most private sector employers to engage in “concerted activity,” regardless of whether they are unionized.  “Concerted activity” includes employees discussing their wages and benefits or other working conditions with each other.  Employers can be subject to unfair labor charges if the National Labor Relations Board (NLRB) interprets their work rules as restricting concerted activity.

For five years, employers had relatively clear guidance on workplace rules that were allowed under NLRA standards. Under the Boeing Co. decision, the NLRB placed work rules into three categories: (1) always lawful; (2) warranting individual scrutiny; and (3) always unlawful.  Unfortunately for employers, this categorical approach has been scrapped and so has much certainty regarding workplace rules.

On August 2, 2023, the NLRB’s Stericycle, Inc. decision reverted back to a modified version of an old “reasonable interpretation” standard reviewing work rules from the perspective of an economically dependent employee who contemplates engaging in workplace discussions with co-workers. If the employer’s workplace rule could be reasonably interpreted to “chill” employees from exercising these rights, it is deemed presumptively unlawful. Further, employers must now narrowly tailor their policies to legitimate business needs – ambiguity in policies will be construed against employers.  The new standard applies retroactively so an employer has no defense that its work rules were appropriate under the prior standard. 

In practice, what does this mean?  Under the old Boeing Co. standard, civility rules requiring employees to be respectful and subjecting employees to discipline for insubordinate conduct were always lawful. But under the new standard, overly broad civility rules may be presumptively unlawful.  An NLRB Administrative Law Judge (ALJ) applied the new standard to find that the following fairly standard policy in a Starbucks handbook is presumptively unlawful:  “Partners are expected to communicate with other partners and customers in a professional and respectful manner at all times.” The ALJ found that the rule was presumptively unlawful because “respectful” and “professional” language is not always apparent, and an employee could reasonably interpret the rule as prohibiting concerted activity.

Starbucks argued that the purpose of this policy was to advance workplace civility. The ALJ stated that maintaining basic standards of civility is a legitimate and substantial business interest in the workplace but that the policy as worded was overbroad, vague, and susceptible to being interpreted by employees as prohibiting them from discussing work conditions with each other.  Further, the ALJ said that Starbucks failed to show that it was unable to advance those interests with a “more narrowly tailored rule” but gave no input as to how the employer could more narrowly tailor the rule.

Given this updated NLRA standard, employers should review their handbooks for workplace policies that could be interpreted as restricting employee communications and modify them to avoid liability under the NLRA.

This article is intended to address topics of general interest and should not be construed as legal advice. © 2024 Noland, Hamerly, Etienne & Hoss