On August 2, 2023, the National Labor Relations Board announced its decision in Stericycle Inc., 372 NLRB No. 113 (2023), and its adoption of a new legal standard it will use to decide whether employer work rules are facially unlawful under Section 8(a)(1) of the National Labor Relations Act.

The Stericycle decision specifically overrules the categorical approach from Boeing Co., 365 NLRB 154 (2017), in which rules were considered under one of three categories:

1. Presumptively lawful;
2. Evaluate on a case-by-case basis;
3. Presumptively unlawful.

Under the new framework, the NLRB will evaluate challenged rules on a case-by-case basis as follows:

1. NLRB will assess whether the General Counsel has proven that the rule has a reasonable tendency to chill employees from exercising Section 7 rights by interpreting the rule from the perspective of an employee who contemplates engaging in protected concerted activity and is economically dependent on their employer. This burden of proof can be met if such an employee could reasonably interpret the rule to be coercive, regardless of the employer’s intent and whether the rule could also be interpreted to not be coercive. If this burden is met, the rule will be presumed to be unlawful.
2. If the General Counsel succeeds in demonstrating that a rule is presumptively unlawful, 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.
3. If a more narrowly tailored rule would have worked to advance the legitimate and substantial business interest, the rule is overbroad and therefore unlawful.
4. If the employer can prove that its legitimate and substantial business interests cannot be accomplished with a more narrowly tailored rule, the rule is lawful.

What about disclaimers?
Employers often add disclaimers in their handbooks and even on specific policies stating that the rules/policies do not apply to Section 7 activity. After the Stericycle decision, it’s unclear whether such disclaimers will save employers from a violation. Some experts recommend adding a disclaimer to any policy that could potentially be viewed as unlawful, while others advise against doing so and just having an overarching disclaimer for the handbook as a whole. Employers should work with legal counsel to determine which approach to take, keeping in mind the Stericycle decision does not address such safe harbor language.

What should I do?
Since the Stericycle decision overturns the standard that has been in place since 2017, employers should review their handbook and other policies for potentially overbroad rules.

To start, read the policy or rule from the point of view of an employee who is economically dependent on the employer and is planning to engage in Section 7 activity. Is there any way such an employee could interpret the rule to apply to any form of protected concerted activity (see some examples below)? Does it threaten potential discipline?

Next, consider whether the policy or rule could be made more specific. Can it include examples of what it is intended to address? Does it clarify the purpose of the policy or rule? Is the purpose to advance a legitimate and substantial business interest?

Also, consider the potential risk of having the policy or rule, and weigh it against the intended benefit. Work with legal counsel to determine the best course of action for your specific needs.

Types of policies likely to need review include but are not limited to:

• Conflicts of interest
• Non-disparagement (including criticism/negative comments about the company, management, products, services, and customers)
• Confidentiality of complaints and investigations
• Communication with media and other third-parties
• Use of personal electronic devices (e.g., smartphones, tablets, etc.)
• Recording/photographing
• Use of company communication resources (e.g., email, chat applications, phones, etc.)
• Social media
• Loitering
• Conduct (including civility, professionalism, insubordination, work stoppages, and slowdowns)
• Solicitation

HEC is currently reviewing our sample policies and handbooks for compliance. We appreciate your kind patience and understanding as we work toward a solution for our members, and will provide more information soon.