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The National Labor Relations Board has issued a highly anticipated decision in Stericycle, Inc., 372 NLRB No. 113 (2023) where the Board adopted a new legal standard for determining the lawfulness of facially neutral work rules under Section 8(a)(1) of the National Labor Relations Act (Act). The new standard announced in Stericycle makes it easier for employees (regardless of whether they are represented by a union) to challenge work rules that can reasonably be interpreted to restrict employees’ rights under the Act to engage in protected concerted activity.  

The Board’s decision in Stericycle overturns its prior precedent in The Boeing Company, 365 NLRB No. 154 (2017), where the Board endorsed the use of rule “categories” to assist employers with assessing the lawfulness of work rules. The Board rejected Boeing’s categorical approach that treated certain work rules as always lawful if the employer’s justification for the work rule outweighed the rule’s potential impacts on Section 7 rights. The Board announced that it is returning to a case-specific approach in which the Board will examine “the specific wording of the rule, the specific industry and workplace context in which it is maintained, the specific employer interests it may advance, and the specific statutory rights it may infringe upon.”

Under the new standard announced in Stericycle, if an employee could reasonably interpret a work rule to have a coercive meaning (i.e. prohibit/discourage employees from engaging in protected activities), the work rule will be deemed presumptively unlawful. The presumption applies, even if a contrary noncoercive interpretation of the work rule is also reasonable. The employer may rebut the 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.

Moving forward, employers should anticipate new challenges to facially neutral work rules that implicate employees’ Section 7 rights, such as social media policies, workplace conduct rules, restrictions on the disclosure of confidential information, solicitation and distribution rules, and appearance/dress code policies. Now is a good time for employers to revisit their workplace policies that implicate employees’ Section 7 rights, consider the business interests advanced by these policies, and evaluate whether these policies could or should be more narrowly tailored in light of the Board’s decision in Stericycle.

Buchanan’s Labor and Employment team of attorneys is ready to assist employers with ensuring that their policies comply with the new NLRB standard and offer additional guidance on the Board’s decision.