On August 2, the National Labor Relations Board issued its decision in Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023), announcing yet another test for determining whether employer policies that are facially neutral might nevertheless be deemed violative of employee rights to organize and act in concert with other employees. This issue has been a point of contention for decades, and legal tests have come and gone as newly-constituted Boards under different Presidential administrations have swung the needle back and forth in favor of employees or employers. This most recent opinion moves back towards the protection of employee rights, but includes the possibility of an affirmative defense for employers.

The new test emphasizes that any facially neutral rule must be read “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.” To prove that a rule is unlawful, the Board’s General Counsel must show that a challenged rule has a reasonable tendency to chill employees from exercising their Section 7 rights; “if an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden, even if a contrary, noncoercive interpretation of the rule is also reasonable.” For example, in Stericycle, a rule prohibiting employee conduct “that maliciously harms or intends to harm the business reputation” of the Company was found to be overbroad. The Administrative Law Judge found the rule made no exception for statements that would be protected by the Act, such as negative statements associated with an organizing campaign.

The employer’s intent in maintaining the rule is “immaterial” under the new test. However, an employer may rebut the presumption of illegality by proving that the rule “advances a legitimate and substantial business interest” and “that the employer is unable to advance that interest with a more narrowly tailored rule.” Thus, in Stericycle, the Administrative Law Judge held that a rule prohibiting the carrying of cell phones onto the production floor was legitimately motivated by safety concerns, and that allowing employees to carry them onto the floor but not use them would be pointless; therefore, the rule as it stood was sufficiently narrowly-tailored to be lawful under those particular circumstances.

Employers need to think carefully about how their rules may be interpreted by their employees, and whether those interpretations might reasonably discourage an employee from exercising protected rights.

If you have any questions, do not hesitate to contact a local Stokes Wagner attorney.

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THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.