On August 2, 2023, the National Labor Relations Board (“NLRB”) issued a decision in Stericycle, Inc., in which they adopted new rules for evaluating whether the policies related to employee conduct in employee handbooks violate the National Labor Relations Act (“NLRA”).
According to Stericyle, Inc., an employer’s policy or rule that has a reasonable tendency to chill employees from exercising their rights to engage in protected concerted activities for the purpose of collective bargaining is unlawful. In short, if an employee reasonably interprets a policy as restricting concerted activity or being coercive, the policy is presumptively unlawful unless the employer can rebut that presumption by showing that the policy advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.
The new standard in Stericycle is remarkably different from the previous NLRB standard in Boeing and LA Specialty Produce Co., which did not require the employer to narrowly tailor its policies to only promote legitimate and substantial business interests. This change in the NLRB’s standard is one of the many changes we can expect since the constitution of the NLRB changed to a Democratic majority that implements President Biden’s pro-union agenda.
Employers should review their employee handbooks and workplace policies to ensure that their policies are not coercive and do not restrict employees’ rights to engage in protected concerted activities. Litigation of employer’s rules is an expected result of this new NLRB standard. So, employers should take this opportunity to examine the justifications for their work rules. If the rule restricts concerted activity, employers should contact their attorney to discuss how to improve the language of the rule.