Labor & Employment Blog

On August 2, 2023, the National Labor Relations Board (“NLRB”) changed the standard for deciding whether an employer’s workplace policy is lawful. In the recent Stericycle decision, the NLRB issued a split ruling reversing a Trump-era standard that made it easier for employers to defend workplace policies against claims that the policies deter employees from exercising their rights under Section 7 of the National Labor Relations Act (“NLRA”). Among other rights, Section 7 of the NLRA guarantees most non-managerial employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The NLRB established the Trump-era standard in Boeing Co., 365 NLRB No. 154 (2017), where Boeing employees challenged Boeing’s policy prohibiting the use of camera-enabled devices on its property. Boeing alleged that this policy was necessary due to the highly-sensitive nature of its business and because terrorists may target its facilities.

In upholding Boeing’s policy, the NLRB determined that, when deciding the lawfulness of maintaining a facially neutral workplace rule, the NLRB would evaluate two considerations: (1) the nature and extent of the potential impact on employees’ NLRA rights, and (2) legitimate justifications associated with the rule. The NLRB also established three different categories of workplace polices: (1) always lawful; (2) requires individual analysis; and (3) presumptively unlawful.

The majority in the recent Stericycle decision reverted to an individualized approach, examining each workplace policy on a case-by-case basis. The NLRB ruled that a workplace policy violates Section 7 if it has a “reasonable tendency” to chill employees from exercising their Section 7 rights. Employers can rebut the presumption that a rule is unlawful by demonstrating that it “advances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule.”

The NLRB’s Stericycle decision follows a series of decisions and memorandums from the NLRB and General Counsel expanding employees’ rights under the NLRA. These decisions affect commonly-used workplace policies, including confidentiality policies and non-competes. Due to these changes, now is a good time for employers to review their current handbooks and workplace policies.

Chamberlain Hrdlicka’s Labor & Employment Group is available to answer any questions and assist with reviewing and revising your handbook policies. Feel free to forward the Labor & Employment Alerts to others who might be interested. If you have questions, please send an e-mail or call us.