In a May 21, 2024, decision, Starbucks Corp., N.L.R.B. A.L.J., No. 07-CA-302784, a National Labor Relations Board (NLRB) administrative law judge (ALJ) struck down a Starbucks policy that required respectful communication in the workplace because enforcement of the policy chilled employees’ rights to discuss the terms and conditions of employment. This decision was transferred to the full Board for review.
Starbucks’ "How We Communicate" policy stated the following: "Partners are expected to communicate with other partners and customers in a professional and respectful manner at all times. The use of vulgar or profane language is not acceptable."
The ALJ applied the analysis for determining whether workplace rules interfere with employees’ rights to engage in concerted activity to address the terms and conditions of employment adopted in the case Stericyle, Inc., 372 NLRB No. 113 (August 2, 2023). When a workplace rule does not facially prohibit protected speech, the NLRB first examines whether the workplace rule has a “reasonable tendency to chill” employees from engaging in protected concerted activity. The NLRB makes this determination from the perspective of an employee “who is subject to the rule and economically dependent on the employer.” A work rule is presumptively unlawful “if an employee could reasonably interpret the rule to have a coercive meaning. . . even if a contrary, noncoercive interpretation of the rule is also reasonable.”
If the NLRB finds that a rule tends to chill protected speech, the employer must show that the rule “advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.” Thus, employers must draft the least coercive workplace rule that advances a substantial business interest.
What does this mean for employers? Employers should review workplace rules, policies, and employee handbook clauses addressing professionalism, communication, social media, etc., to determine whether these rules are drafted as narrowly as possible and are supported by a legitimate business interest. Broadly drawn rules, such as Starbucks’ rule, likely will not survive scrutiny.
Employers Council offers handbook reviews to Consulting and Enterprise members and offers all members extensive online handbook resources. If you have any questions, please contact us at info@employerscouncil.org.
Dean Harris is an attorney for Employers Council.