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The National Labor Relations Board (NLRB or Board), in the Stericycle decision, recently changed the way it will evaluate reasonable workplace rules under the National Labor Relations Act (NLRA or Act). The Board found that prior analysis was “problematic because it permitted employers to adopt overbroad work rules that chill employees’ exercise of their rights under Section 7 (the right to discuss wage and other terms and conditions of employment) of the Act.” The NLRB was concerned that employers were not required “to narrowly tailor their rules to further their business interests without unnecessarily burdening employee rights.” This decision applies to all private sector employers, whether unionized or not, and is retroactive.
Under the Stericycle standard, a challenged workplace rule will be presumed unlawful if the NLRB General Counsel proves that rule has a reasonable tendency to chill employees’ exercise of their rights. The employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and cannot advance that interest with a more narrowly tailored rule. If the employer makes their case successfully, the rule will be found lawful to maintain. The issue in the Stericycle case was whether the rule can be interpreted to limit employee rights to discuss wage and other terms and conditions of employment and if by doing so the employer is restricting employee right to unionize or other activities protected under the NLRA.