In HR Dive’s Mailbag series, we answer HR professionals’ questions about all things work. Have a question? Send it to [email protected].
Q: Can you provide sample disclaimer language that we should append to our handbook policies in light of Stericycle?
A: Employers should add a “robust” disclaimer to handbooks and policies in light of the National Labor Relations Board’s Stericycle ruling, according to Kelly Robreno Koster, partner at Bracewell.
The ruling held that vague rules around things like workplace civility and social media may violate workers’ Section 7 rights because they may dissuade protected concerted activity.
Stakeholders said Stericycle foreshadowed increased Board scrutiny of such policies. To avoid such scrutiny, Robreno Koster said employers could adopt language such as the following:
“Nothing in this [agreement/handbook/policy] prohibits or restricts Employee from exercising Employee’s rights under the National Labor Relations Act (NLRA), including rights under Section 7 of the NLRA, such as the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or any other activities protected by the NLRA.”
Robreno Koster cautioned, however, that the above language is only an example and not meant to be used as formal legal advice.
She also noted that it remains to be seen whether such disclaimers will be effective: In a dissent, Board Member Marvin Kaplan said that disclaimers are seemingly the only way for employers to prevail under the new heightened standard, but the legal sufficiency of them will remain unclear until this specific issue comes before the board.
