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New ruling may affect your employee conduct policies

Updated: Dec 6, 2023

On August 2, the National Labor Relations Board issued a decision in Stericycle implementing a stricter standard for determining whether employee conduct policies interfere with workers rights' to organize.

What does this mean?

The NLRB is taking a harder look at work policies to make sure they don't interfere with workers' rights to organize. These rights include the ability to talk to coworkers about wages and benefits, refuse to work in unsafe conditions, and report problems in the workplace. Under the Stericycle ruling, work policies that had become standard additions to employee handbooks might be invalidated -- including regulations on employees' personal conduct, broad conflict of interest statements, and confidentiality requirements regarding harassment claims.

Who does this ruling apply to?

Rulings issued by the National Labor Relations Board cover most non-government employers, including for-profit and non-profit organizations.

Are all employee conduct policies now prohibited?

No. But if challenged, an employer needs to show that a particular policy advances legitimate and substantial business interests that can't be achieved by adopting a more narrow rule.

Our takeaway on employee conduct policies:

Any policy that could interfere with an employee's ability to advocate for their rights and livelihood should be as tailored and specific as possible. Consider the following example of a media policy:

EXAMPLE A: "Employees are prohibited from engaged with any news outlet or media agency during their employment at the Company."

This is likely invalid under the new ruling, because it interferes with an employee's right to report or discuss a workplace issue.

EXAMPLE B: "Employees are not authorized to represent or speak on behalf of the Company when engaging with any news outlet or media agency."

The is likely valid under the new ruling. It's tailored to an employer's legitimate business interest in making sure only designated representatives can speak on behalf of the company, but still leaves room for employees to personally engage with the media if they want to exercise their NLRA rights.

If you have any questions about whether your employee handbook and/or specific work policies need to be updated to comply with this ruling, please let us know!

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