NLRB Adopts New Legal Standard for Employer Work Rules

On August 2 2023, the National Labor Relations Board (NLRB) adopted a new legal standard for evaluating challenged employer work rules under Section 8(a)(1) of the National Labor Relations Act, returning to a pre-2017 interpretation. During the Trump Administration, the NLRB established the policy to not “presume improper interference with employee rights”, and set up three categories of employer rules to balance employee Section 7 rights and employers rights.  Now, under the Biden Administration, the NLRB has set a new standard (Stericycle 2023), disposing of the three rule categories, and implementing a policy that the “reasonable tendency to chill employees from exercising rights” must be proven by the General Counsel to presume the rule is unlawful.  Employers have the chance to petition the ruling if they can prove the ruling in question “advances legitimate and substantial business interests”, and that those interests cannot be fulfilled under a different, narrower application of the rule.  The current NLRB board argued that previous interpretations (Boeing 2017, LA Specialty Produce Co. 2019), allowed employers to adopt overbroad work rules, which prevented employees to exercise their rights under section 7 of the National Labor Relations Act (NLRA).