The pendulum is swinging once again at the National Labor Relations Board (“NLRB” or “Board”). In its recent decision in Stericycle, Inc., 372 NLRB No. 113 (2023), the Board largely returned to Obama-era standards for evaluating whether workplace rules infringe on employees’ Section 7 rights under the National Labor Relations Act (“NLRA” or “Act”). Section 7 of the Act gives employees the right to engage in concerted, protected activities. While most employers think of the Board as policing union matters, keep in mind that the NLRB also has jurisdiction over non-union employers and employees.
In Stericycle, the Board majority returned to the standard of a case-by-case review of employer rules and heightened its scrutiny of workplace policies in at least two important ways. First, the new standard focuses on whether a work rule “could” (rather than “would”) be interpreted to chill employees’ Section 7 rights, meaning rules may be deemed illegal even if there are alternative interpretations that are consistent with employee rights. Second, whether a rule implicitly limits protected activities under the new standard will not be considered from the standpoint of a “reasonable” employee. Rather, the Board “will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer.” This represents a drastic change from Trump-era Board law.
What Should Employers Do Now?
If the Board receives a complaint and ultimately finds one or more of an employer’s work rules to be unlawful under Stericycle, the employer will be required to remove, redact, or replace unlawful policy language and post and distribute notices to employees acknowledging the violation and providing information about their rights under the Act. More importantly, terminating employees according to rules that the Board deems overly broad can result in reinstatement and back pay awards.
Even before the Stericycle decision, it was considered a best practice for employers to establish regular, periodic reviews of their handbooks and workplace rules. In light of the Board’s new standard, employers should conduct such a review now, with a particular eye toward policies that restrict employee speech and actions, as those policies are the most likely to be interpreted as interfering with Section 7 rights. For example, employers should review policies regarding:
- Employee use of social media;
- Criticism of the employer and/or company management;
- Promotion of civility in the workplace;
- Confidentiality of investigations and complaints;
- Disclosure of confidential information, such as terms and conditions of employment;
- Contact with the media and government agencies;
- Solicitation and distribution in the workplace;
- Use of cell phones, cameras and recording devices in the workplace;
- Employee disciplinary rules;
- Use of company communication devices;
- Appearance/dress code; and
- Open-door/internal complaint procedures.
Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding employment law issues. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney is available for additional consultation.
Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers' Association
800-662-6238
Who is MEA?
MidAtlantic Employers’ Association delivers comprehensive HR-driven business solutions designed to help companies grow. Whether you need support for a single project or complex issues, you have access to seasoned professionals who are experts in their fields and dedicated to serving you well. Our collaborative, accessible, and responsive nature allows us to help you find solutions aligned with your goals. Whatever your goals are, we can help you develop better people and better outcomes so they can be achieved.
To learn more, contact Matthew Roessler, Director of Member Engagement, viaThis email address is being protected from spambots. You need JavaScript enabled to view it.or 201-738-8121.