In early August 2023, the National Labor Relations Board (“NLRB”) announced a revised, more restrictive legal standard to determine whether employer-created workplace policies and rules violate the National Labor Relations Act (“NLRA or the Act”).
In Stericycle, Inc., 372 NLRB No. 113 (2023), the NLRB reestablished the framework by which workplace rules and policies are evaluated. Under the new Stericycle standard, the NLRB will analyze, through case-by-case review, whether an employer’s rule or policy has a reasonable tendency, in the eyes of an employee, to chill or inhibit employees from exercising their NLRA Section 7 rights, (such as the ability to engage in concerted activity related to the terms and conditions of employment). If the NLRB finds the rule or policy has such a tendency, the rule/policy is presumed unlawful and the burden shifts to the employer to rebut the presumption by showing that the rule advances a legitimate and substantial business interest that cannot be achieved with a more narrowly tailored rule. Under the new standard, the analysis will be based on the perspective of an employee “economically dependent” on the employer who considers engaging in activity protected by the Act.
Given this decision, employers should review their workplace policies and rules for content and clarity. Key in this exercise is ensuring that policies are sufficiently tailored to achieve only their desired, and lawful, purposes.
If you have any questions regarding this article, or how to determine if your employment policies are legally compliant, please contact the Underberg & Kessler attorney who regularly handles your legal matters, or Ryan T. Biesenbach at (585) 258-2865 or rbiesenbach@underbergkessler.com.
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