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Labor & Employment Blog

Labor & Employment Blawg

The Labor & Employment Blog provides employers with breaking news, insights, and legal analysis on the wide range of labor and employment issues facing employers and businesses.  While the Blog provides a general summary of regulation updates, it is not intended to be, and should not be relied upon as, legal advice.  The labor & employment attorneys at Chamberlain Hrdlicka stand ready to counsel employers on the issues they face.

Larry Carbo, Shareholder and Co-Chair

Diana Perez Gomez, Shareholder and Co-Chair

Julie Offerman, Shareholder

Kellen Scott, Shareholder

Leslie Tan, Senior Counsel

Elizabeth Feeney, Associate

AmyJo "AJ" Foreman, Associate

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The NLRB Continues to Tighten the Reins on Employers

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.

  • AmyJo "AJ"  Foreman

    AmyJo "AJ" Foreman is an associate in the litigation section. Her practice focuses primarily on commercial litigation, labor & employment, and appellate matters.

    AJ graduated from the University of Houston Law Center where she was ...

  • C. Larry  Carbo, III

    Larry Carbo maintains an active, nationwide commercial litigation practice and has tried over 30 cases to final verdict in state court, federal court and before arbitration tribunals. Larry focuses on the representation of ...

  • Diana Pérez Gomez

    Diana Gomez is a talented trial attorney with extensive experience in civil lawsuits in state and federal courts. She focuses on complex labor and employment disputes by providing a full range of employment law services to her ...

  • Elizabeth A. Feeney

    Elizabeth "Liz" Feeney is an associate in the Commercial Litigation section, focusing primarily on labor and employment matters. She graduated from the SMU Dedman School of Law and began her career at a mid-sized firm in Fort Worth ...

  • Hannah  Strawser

    Hannah Strawser is an associate in the Houston office and a member of the Firm's Commercial Litigation section, focusing primarily on labor and employment matters.

    Hannah attended the University of Houston Law Center where she was ...

  • Julie R. Offerman

    Julie is an experienced litigation attorney in Chamberlain’s Houston office. She has substantial experience defending employers nationwide in wage and hour class and collective action lawsuits, including matters involving ...

  • Kellen R. Scott

    Mr. Scott maintains a general civil litigation practice in state and federal courts, with particular emphasis on employment law, governmental defense, and civil rights.

    His practice includes the defense of employers and ...

  • Leslie T. Tan
    Senior Counsel

    Leslie Tan is an experienced attorney specializing in labor and employment matters and complex civil litigation. Ms. Tan enjoys guiding employers through challenging situations, from counseling on daily operations to ...

  • Lucas  Meng

    Lucas Meng joined Chamberlain Hrdlicka’s Commercial Litigation practice, specializing in labor and employment. He is an active litigator in federal and state court, where he defends clients in a wide variety of employment law ...