Under the National Labor Relations Act (NLRA), employees have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  In Stericycle, Inc., 372 NLRB No. 113 (2023), the National Labor Relations Board (NLRB) adopted a new, stricter standard for assessing workplace policies for the purpose of protecting these employee rights.  Under the new standard, a work rule is presumed to be unlawful if it could be interpreted to limit employee rights under the NRLA. 

The standpoint now used to determine if a work rule is acceptable is that of the “reasonable” employee who considers engaging in activities protected by the NRLA.  The burden is on the employer to justify its rule and show that the purpose of the rule cannot be accomplished by a narrower rule.  The NLRB will take a case-by-case approach in assessing workplace rules.  As a clarification of existing law, the Stericycle decision will be applied retroactively.

For example, the NLRB recently applied the Stericycle standard to assess the “How We Communicate” Starbucks employee handbook policy.  The policy provides that employees are expected to communicate with other employees and customers in a professional and respectful manner at all times and that the use of vulgar or profane language is not acceptable.  The NLRB found that while upholding basic civility was legitimately in Starbucks’ business interest, this handbook policy was overly broad, vague, and susceptible to application against legally protected activity.  Further, the NLRB reasoned that workers could think it applied to their activity even when they were off the clock.

Employers should review their stand-alone workplace rules and those in their handbooks in light of the new NLRB standard for evaluating workplace policies and rules.  It is recommended, among other things, that each workplace rule be written as narrowly as possible to accomplish its purpose and that the justification for the rule be clearly stated.

The author would like to gratefully acknowledge the assistance of Joanne Warriner.