NLRB Again Reinvents Rules for Employer Policies Under National Labor Relations Act

The NLRB's standards for whether employer policies restrict employee rights to "protected concerted activity" under Section 7 of the National Labor Relations Act have again changed in favor of broader protection of employee conduct, communications and actions. A change in these standards has been expected since the composition of the Board became majority Democratic under the Biden administration and the current NLRB General Counsel announced her goals for revision of many past NLRB decisions issued under prior administrations. In the long-anticipated NLRB decision in Stericycle, Inc., issued on August 2, a 3-1 majority of the Board held that the previous standard "permits employers to adopt over broad work rules that chill employees' exercise of their rights" and does not require an employer to "narrowly [tailor] its rules" to conform to legitimate and substantial business interests.  

Under Stericycle, if employees could "reasonably interpret" a work rule to restrict their rights to protected concerted activities, the rule is presumed unlawful. Then the burden shifts to the employer to prove that the rule is both narrowly drawn to advance only legitimate and substantial business interests and that a more narrowly tailored rule cannot be adopted in its place. The Board also rejected the prior approach of establishing categories of policies that are presumed to be lawful or unlawful in favor of a case by case individual evaluation.

Now that Stericycle has been decided, the NLRB may rule that many common workplace policies are unfair labor practice violations, even without evidence that the policies have actually restricted employees in the exercise of their Section 7 rights.

Employers will again need to reexamine existing policy documents to ensure that they are as narrow as possible and to revise them to avoid ambiguity that could be interpreted by employees to restrict their rights of conduct, communication and concerted action.