On August 2, 2023, the National Labor Relations Board (“NLRB” or “Board”) announced a long-anticipated decision called Stericyle that will affect how employers craft, apply and enforce workplace policies, regardless of whether a labor union represents their employees. As we anticipated several years ago, the Stericyle Board, with a majority of members nominated by President Joseph Biden, rejected the agency’s 2017 decision in The Boeing Company, in which it adopted a balancing test to evaluate facially neutral employer rules and handbook provisions. Under The Boeing Company test, the Board weighed the nature and extent of such rules’ potential impact on employee rights under the National Labor Relations Act (“NLRA”) against employers’ legitimate justification(s) for the policies.
The majority opinion in Stericycle Inc. substantively revives the NLRB’s stance on workplace rules as established in the 2004 Lutheran Heritage decision. Under this new framework, the mere maintenance of any employer’s rule, policy, or handbook provision that has a “reasonable tendency to chill employees from exercising their Section 7 rights” may constitute an unfair labor practice in violation of the NLRA.
In a decision that will affect New Jersey employers seeking to arbitrate employees’ claims, the Appellate Division, earlier this month, in Morgan v. Ramours Furniture Company, Inc., held that arbitration clauses contained in employee handbooks are unenforceable where the handbook also includes a disclaimer that it does not create a contract.[1] Accordingly, New Jersey employers whose handbooks currently include arbitration clauses should consider carefully, replacing them with either arbitration clauses in an employment application, and/or with a stand-alone ...
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