MWH Law Group logo

Comprehensive Policy Reviews Recommended Considering NLRB Ruling

August 16, 2023
Julie Bittner

On August 2, 2023, the National Labor Review Board (NLRB) issued a decision in Stericycle, Inc. and adopted a new legal standard for evaluating employer work rules that are challenged as facially unlawful under Section 8(a)(1) of the National Labor Relations Act (NLRA). The NLRA is a federal law that grants employees the right to form or join unions; engage in protected, concerted activities to address or improve working conditions; or refrain from engaging in these activities. The NLRA applies to most private sector employers, including manufacturers, retailers, private universities, and healthcare facilities. The NLRA does not apply to federal, state, or local governments; employers who employ only agricultural workers; and employers that are subject to the Railway Labor Act (interstate railroads and airlines).

Under the new standard adopted in Stericycle, the NLRB General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If the General Counsel does so, then the rule is presumptively unlawful. The employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest, and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, the rule will be found lawful.

The employer’s intent in maintaining a work rule is immaterial. The NLRB will interpret the rule from the perspective of an employee who is subject to the policy, economically dependent on the employer, and contemplating engaging in protected concerted activity. Concerted activity occurs when two or more employees act for their mutual aid or protection regarding the terms and conditions of their employment.

In light of Stericycle, Inc., examples of policies that may need revision may include, but are not limited to, employee use of social media, restrictions on recording devices or cameras in the workplace, disparagement, insubordination, confidentiality, reporting safety complaints, and many more.

If an employer is found to have unlawful rules, it could result in having to pay backpay in the event an employee is terminated pursuant to such a rule. Employers are therefore encouraged to review and revise their policies sooner rather than later.

Consult with an employment attorney at MWH Law Group regarding any questions or concerns related to these issues.