NLRB Rules Again in Favor of Employee Rights

Beth Dean 10.03.23
2023-10-03 Nextep blog - NLRB

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.

You might also be interested in…

Nextep weekly tip - concerted activity

For more tips on understanding protected concerted activity, visit our blog post rundown!


Also on Nextep

Ah, the holiday season—a time for joy, festivities, and the age-old puzzle of compensating your employees. Let’s demystify the rules of holiday pay for both our hourly (nonexempt) and salaried (exempt) workers. For the Hourly Heroes Picture your business decked out in holiday cheer, but your nonexempt employees are sipping cocoa at home. Under the […]
Read more
Keep Your Party Pants Professional As the year ends, and you’ve achieved feats at work that deserve a standing ovation, the holiday office party is your well-earned, much-awaited reward.  But beware! When the festive spirit meets the allure of a bottomless drink supply, things can take a wild turn, leaving you nursing a hangover, regret, […]
Read more
We’ve talked recently about the importance of sustainability in business. Let’s take it a step further and look at ESG, or Environmental, Social, and Governance.  The Impact of ESG on Companies Environmental (E) Companies that focus on their environmental impact are making a positive change. They reduce their carbon footprint, use clean energy, and find […]
Read more
Sustainable business isn’t just for hippies! As we discussed in our previous article, sustainability is increasingly important to today’s business. It is a crucial and relevant issue that affects everyone and every organization, regardless of industry or beliefs. Sustainability involves taking a long-term, holistic view of how we interact with the environment and our communities, […]
Read more
At Nextep, we aim to stay informed about CEO concerns in order to better help with problem-solving. We were surprised to learn that sustainability has become a top concern. The statistics bring CEO concerns to light: A Gartner survey found that CEO concern about sustainability has increased 292% from their 2021-22 survey. In a survey […]
Read more
It’s not the most savory of topics, but still merits discussion. All of your employees will need to use the bathroom during work. Here’s a potty primer, if you will. Disability and Bathrooms The Americans with Disabilities Act (ADA) has clear regulations on bathroom accessibility in the workplace. Much of the guidance revolves around making […]
Read more
We’ve reported at length about preventing discrimination in the workplace. But let’s take a step back now and brush up on Title VII, the sweeping regulation that started it all.  Title VII of the Civil Rights Act forbids discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, […]
Read more
Illinois to Join in on Pay Transparency As we recently reported, pay transparency laws are gaining momentum across the United States. Now, they have another state to add to the roster.  Illinois recently passed an amendment to the Illinois Equal Pay Act that will require employers to show pay and benefits information when posting a […]
Read more
Spoiler Alert: Yes We frequently see a question posed to HR pros: “Do I have to pay my employee if…?” We’ll go ahead and give you a major hint at the outset. In many of the scenarios we see, the answer is yes, you do have to pay your employee. Here are a few scenarios. […]
Read more
The Answer Depends on Your State…For Now As we reported in January, non-compete agreements preventing employees from working for competitors are becoming increasingly unenforceable. The FTC is currently working on banning them at a federal level, but unless and until that decision comes, non-competes are enforced at a state (and sometimes even local) level.  As […]
Read more
When hiring workers, knowing whether they’re employees or independent contractors is essential. The difference between the two can significantly impact your business, including your tax liability, your liability for workers’ compensation claims, the worker’s rights and benefits, and your ability to control how your workers do their jobs. Read all about it here, and check […]
Read more
Employers Must Now Prove “Substantial Increased Cost” to Deny Religious Accommodation Recently, the Supreme Court ruled that employers must now demonstrate a substantially increased cost to deny an employee’s request for a religious accommodation.  This ruling, which comes in the case of Groff v. DeJoy, clarifies the standard for “undue hardship” under Title VII of […]
Read more

Download Our App