Employers’ workplace policies must comply with New Jersey employment laws. This includes federal laws passed by Congress and state laws passed by the New Jersey Legislature. At the federal level, the National Labor Relations Act (NLRA) protects workers’ rights to engage in organizing activities. The National Labor Relations Board (NLRB) adjudicates complaints from employees that allege violations of their rights. When an employment policy interferes with workers’ ability to organize themselves, the employer might be in violation of the NLRA. An August 2023 decision from the NLRB revises the standards that it uses to assess whether a particular policy or rule infringes on employees’ rights. It reverses a standard put in place in 2017 and reinstates an earlier standard with some modifications.
Workers have the right under § 7 of the NLRA to organize themselves in order to form or join unions. By organizing in this way, workers gain greater leverage in negotiations with their employers through a process known as collective bargaining. Employers violate the NLRA when they interfere with efforts to organize or engage in other activities intended to promote workers’ interests. Violations of these rights are possible even without obvious intent on the part of an employer. Policies or rules that appear neutral can still be unlawful in certain situations.
In 2017, the NLRB issued a ruling that established a standard for evaluating employment policies that remained in place until the recent decision. The 2017 standard gave greater leeway to employers than the standard it replaced. It identified three categories of employment policies, based on the level of scrutiny that it would apply:
– Category 1: Rules that are lawful, either because they generally do not interfere with workers’ rights or they serve a purpose whose important outweighs the possible impact on workers.
– Category 2: Rules that the NLRB assesses on a case-by-case basis to balance the extent of any NLRA violations against possible business justifications.
– Category 3: Rules that unambiguously infringe on workers’ rights.
The NLRB’s August 2023 decision effectively reverses its 2017 decision and throws that standard out. It reinstates the previous standard, which the NLRB established in a 2004 decision, with some changes. Under the 2017 standard, the NLRB tended to limit its analysis to whether or not a challenged policy or rule violated workers’ rights from a rather objective viewpoint. It did not give much weight, if any, to how employees perceived a policy in the specific context of their workplace. The new standard requires “consideration [of] the chilling effect that work rules can have on workers’ Section 7 rights.”
Rather than dividing employment policies into categories, the new standard requires the NLRB’s General Counsel to demonstrate that a policy would be reasonably likely to discourage employees from freely exercising their NLRA-protected rights. Meeting this standard creates presumption that an employment policy is unlawful. The employer may rebut that presumption by showing that the policy is the most narrowly-tailored means by which it can pursue a “legitimate and substantial business interest.”
If you believe that your employer has engaged in acts that violate state or federal law and have caused you harm, you need a skilled and experienced employment attorney who can advocate for your legal rights. The Resnick Law Group represents workers in New Jersey and New York in claims for unlawful workplace practices. To schedule a confidential consultation with a member of our team, please contact us today at 973-781-1204, at 646-867-7997, or online.