NLRB Issues New Standard to Assess the Lawfulness of Work Rules

Recently, the National Labor Relations Board (NLRB) adopted a new standard for evaluating the legality of employer work rules. Specifically, the standard addresses any work rules claimed to be facially unlawful under Section 8(a)(1) of the National Labor Relations Act (NLRA). The NLRB’s decision overruled the earlier Boeing Co. (2017), which the Board later refined in LA Specialty Produce Co. (2019). Additionally, the new standard (Stericycle) builds on and revises the previous Lutheran Heritage Village-Livonia (2004) standard. Previously, the NLRB released its long-anticipated joint employer final rule. In late November, the agency pushed the effective date of that final rule to February 2024.

Background of the Stericycle Decision

Markedly, in Stericycle, the NLRB explained that the Boeing and LA Specialty Produce standard (when merged) contained one primary issue. Generally, the standard permitted employers to adopt overly broad work rules. By and large, such rules could interfere with an employee’s ability to exercise their rights under the NLRA. For example, the standard did not require employers to precisely tailor their rules when promoting legitimate and substantial business interests. Employees’ rights were considered “burdened” by not regulating these practices. Similarly, the NLRB rejected Boeing’s categorical approach to work rules. In brief, under Boeing, previous NLRB members held specific rules to be always lawful. Significantly, this was regardless of how employers drafted them or what interests a particular employer cited defending the work rule.

Overview of the Latest Decision

Subsequently, the NLRB General Counsel (GC) must follow new enforcement procedures under the new standard adopted in Stericycle. Specifically, the GC must prove that a challenged work rule has a reasonable tendency to prevent employees from exercising rights. Chiefly, if the GC does so, then the work rule is presumptively unlawful. However, the employer may rebut the presumption by proving that the work rule advances a legitimate and substantial business interest. Equally important, though, is that they must prove they cannot advance that interest with a more narrowly tailored rule. Hence, if the employer proves its defense, the NLRB must find the work rule lawful to maintain. In line with this framework, the NLRB rejected Boeing’s categorical approach, favoring case-specific consideration of work rules.

Employer Takeaways

In conclusion, in light of these developments, employers must revisit their workplace rules and handbooks. Each work rule should be as narrow as possible to fulfill its intended purpose. Generally, clear justifications for these rules are essential to demonstrate their necessity and compliance with the new NLRB standard. Employers must also ensure they respect and protect employee rights, as the NLRA outlines. Additionally, under the Occupational Safety and Health Act’s General Duty Clause, all employees have the right to work in a workplace free from suspected hazards. To comply with those employee rights, employers should familiarize themselves with the six common workplace hazards and find out how to fix them if found.