The National Labor Relations Board (“NLRB” or “Board”) recently released the decision Stericycle Inc., which revises the test for determining whether an employer’s workplace policies comply with the National Labor Relations Act (“NLRA”). 

Specifically, the decision reverses the Board’s former decision in Boeing Co. and adopts a new test: specifically, could a worker reasonably read, or interpret, a workplace policy as restricting their NLRA rights? With Stericycle, the Board has shifted the burden to the employer to demonstrate the legitimate business need for a particular workplace policy. Now, when the Board reviews a policy, the burden to prove the policy’s lawfulness immediately shifts to the employer if an employee could reasonably interpret a policy as having coercive meaning. Any policy that has a “reasonable tendency to chill employees from exercising their [collective bargaining] rights” may constitute an unfair labor practice and a violation of the NLRA—even if the rule could also be interpreted as not restricting workers’ rights.

Employers should familiarize themselves with this decision and review their handbooks and policies to ensure they are narrowly tailored to meet the needs of their business. In addition, workplace rules must not, in any way, chill employees from exercising their Section 7 right under the NLRA. Notably, explicit “safe harbor” provisions which disclaim any intention to infringe on Section 7 rights cannot be relied upon to save otherwise invalid rules. The Board indicated that employers should consider explanations or illustrations contained in the rule to explain how the rule does not apply to Section 7 activity.

Should you have any questions or if you need assistance regarding this new decision and its impact on your business, please contact Ali Law Group.

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