NLRB Rules Again in Favor of Employee Rights

Beth Dean 10.03.23

Time to check your handbook again for NLRB compliance

The National Labor Relations Board (NLRB) has been busy shaping employee handbooks and workplace policies. With the recent Stericycle Inc. decision, the NLRB has introduced a new legal standard for evaluating employer work rules under Section 8(a)(1) of the National Labor Relations Act (NLRA).

Understanding the New Standard

The Stericycle decision overrules the previous Boeing (2017) and LA Specialty Produce (2019) standards for evaluating work rules and how they could impact an employee’s rights under Section 7 of the NLRA. The new standard is more protective of employee rights. It makes it more difficult for employers to enforce work rules that could keep employees from exercising their Section 7 NLRA rights.

Section 7 of the NLRA protects employees’ right to unionize and to join together to advance their interests as employees. As a reminder, the employee protections exist even in non-unionized companies. These changes affect businesses, whether unionized or not.

Under the new standard, a work rule is presumptively unlawful if it has a reasonable tendency to keep employees from engaging in protected conduct. In plain-speak, a workplace rule could break the law if it interferes with an employee’s NLRA rights.

Protected activity includes discussing wages and working conditions with co-workers, forming or joining a union, or participating in a union organizing campaign. When making rules or handbook policies, employers must be careful not to run afoul of those Section 7 rights, especially in light of the Stericycle decision.

Employers must show that the rule advances a legitimate and substantial business interest. It should also be only as restrictive as necessary to achieve that interest.

What This Means for Employers

The Stericycle decision has several implications for employers. First, it means that employers will need to be more careful about the language of their work rules. Any rule that could be interpreted as chilling employees from exercising their NLRA rights is now more likely to be found unlawful. Second, employers must be more selective about when and how they enforce their work rules. Suppose an employer enforces a rule in a way that could be seen as retaliating against an employee for engaging in protected conduct. In that case, the employer could be violating the NLRA.

Overall, the Stericycle decision is a significant victory for employee rights. It makes it more difficult for employers to enforce work rules that could impede employees from exercising their right to organize and bargain collectively. Employers should carefully review their work rules in light of the Stericycle decision to ensure that they do not violate the NLRA.

Here are some specific examples of work rules that could be unlawful under the new standard:

A rule that prohibits employees from discussing wages and working conditions with co-workers.
A rule that requires employees to maintain confidentiality of workplace investigations.
A rule that prohibits employees from soliciting or distributing union literature on company property.
A rule that prohibits employees from wearing union insignia at work.

The Stericycle decision does not apply to all work rules. For example, policies that are necessary to protect employees’ safety or maintain the confidentiality of trade secrets are still permissible. However, employers should carefully consider the potential impact of any work rule on employee rights before implementing it.

If you are an employer, we recommend consulting with an attorney. Also, call your HR Business Partner at Nextep to discuss the implications of the Stericycle decision for your business.