NLRB Restores Vigorous Standard for Vetting Employer Work Rules

August 14, 2023 by Andrew Baker

The NLRB has thrown out another Trump-era, pro-employer rule that departed from a long-established standard. The rule at issue here determines whether ambiguous employer rules on their face unlawfully interfere with employee Section 7 rights. In Stericycle (8/2/23), the Board overturned Boeing (2017) and returned to a standard first adopted in 2004.

Under the Boeing test, the Board applied a balancing test to determine whether ambiguous employer rules that could be interpreted as violating Section 7 rights, but might also be construed as non-coercive, would in fact be declared unlawful. Under this test, how employees might actually read the rule was given little weight. The Board majority noted in Stericyle that “the primary problem with the [Trump-era] standard… is that it permits employers to adopt overbroad rules that chill employees’ exercise of their rights under Section 7.”

Under the 2004 standard reinstated with this new decision, the Board assesses an ambiguous rule on its face to determine whether employees might reasonably read the rule as interfering with their rights. If so, the rule is declared unlawful, unless the employer can prove that the rule advances a “legitimate and substantial” business interest that cannot be achieved by a “more narrowly tailored” rule.

This decision gives unions and employees a strong tool to challenge employer rules that might discourage employees from starting or supporting a union.

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