On August 2, 2023, the National Labor Relations Board (“NLRB” or the “Board”) rejected an employer-friendly standard in favor of a modified and significantly less employer-friendly standard when evaluating whether a workplace rule violates the National Labor Relations Act (“NLRA”).  Stericycle, 372 NLRB No. 113 (2023).  In recent years, the Board’s opinion of what constitutes interference, restraint or coercion under the NLRA has changed depending on who is in the White House or on the Board.  This new ruling confirms the Board’s intention to increase scrutiny of employer’s workplace rules and policies.

The Board has now adopted a standard that presumes a work rule to be unlawful based on an employee’s understanding of the rule.  So long as an employee could “reasonably interpret” an employer’s rule to have a coercive meaning, the rule is presumptively unlawful, even if a contrary, non-coercive interpretation of the rule also is reasonable.  Importantly, the employer’s intent is irrelevant under the Board’s adopted standard.  Once a rule is presumptively unlawful, the employer may rebut the presumption by demonstrating that (1) the rule furthers a legitimate and substantial business interest, and (2) a more narrowly tailored rule cannot achieve this interest.  If the employer successfully rebuts the presumption, the rule is lawful under the NLRA.  Read more here.

The Board’s standard applies to all employers, even if an employer does not have employees represented by a union.  In light of the revised standard, all employers are encouraged to review their employment policies and rules and consult with their labor counsel.

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