Some background: the National Labor Relations Act is a federal law granting employees the right to form or join unions and engage in protected, concerted activities to address or improve their pay and working conditions. Basically, employees have the right to unionize and to join together to advance their interests and it is illegal for an employer to interfere with, restrain or coerce them from doing so. The National Labor Relations Board is an independent federal agency created to enforce the Act.

Why should you care? Because the Act applies to most private sector employees (even non-unionized ones) and the Board’s functions include receiving and ruling on charges alleging illegal practices, including violations of employees’ right to engage in the protected, concerted activities mentioned above.

The President appoints the Board’s members. Thus, its composition and whether its decisions are pro-management or pro-labor tend to change when the presidency switches from one political party to the other, as occurred in 2016 and 2020.

A recent example of this was the Board overturning decisions made during the Trump administration and ruling that work rules, including handbook rules that are neutral and did not expressly apply to protected activity that an employee could “reasonably construe” as prohibiting the exercise of rights under the Act, such as discussing working conditions, were unlawful.

In Stericycle, Inc. the Board held that it would apply a burden-shifting framework to analyze these neutral workplace rules. First, the Board’s General Counsel must establish that an employee could reasonably interpret the rule to have a coercive meaning “even if a contrary, non-coercive interpretation of the rule is also reasonable.” If that occurs, the rule is “presumptively unlawful.” The employer can rebut that presumption by proving that the rule advances a legitimate and substantial business interest that the employer cannot advance with a more narrowly tailored rule. In other words, if the employer could advance the interest via a less restrictive rule (even theoretically), it cannot meet its burden and the rule is unlawful.

Applying its new standard (which in reality, was a return to the standard employed when President Obama was in office), in Stericycle, the Board affirmed an administrative law judge’s decision that the employer’s rules governing conflicts of interest, personal conduct and confidentiality of harassment complaints violated the Act.

The takeaway: under this extremely pro-labor Board, it is not unreasonable to assume that facially neutral policies, like the ones at issue in Stericycle and policies addressing matters like workplace civility, prohibiting recording, investigative confidentiality and media contact would be held unlawful.