Overview. On August 2, 2023, the National Labor Relations Board issued its decision in Stericycle, Inc. and Teamsters Local 628, a collection of cases consolidated on the issue. The not-so-brief NLRB opinion is linked in the link below in this report.
In sum, the NLRB prescribed a new standard for evaluating whether an employer’s workplace rules or policies tend to interfere with employees’ exercise of rights under the NLRA Sections 7 and 8, being the National Labor Relations Act provisions that allows and encourages concerted conduct among employees in regard to work conditions, pay, and related matters.
Basically, the NLRB has placed employers in the crosshairs (again) for, but not limited to:
- Policies that prohibit bad or negative statements about an employer.
- Policies that require cooperation or to maintain positive work environment.
- Policies that require an employee to speak with a manager about improper pay deductions or improper denial of rest periods.
The NLRB’s concern is on mainly “tone-related” policies (which is subjective, but, as shown below, reviewed from the employee’s perspective) that the NLRB believes “chill” employees’ right to engage in concerted action about work conditions, pay, etc. Much like we dealt with in the recent NLRB matter.
Every employer should consider circling back to its Employee Handbook to see if the company’s proposed culture of positivity, teamwork, etc. is more than that which is now allowed by the NLRB, according to Stericycle.
Review Standard for Workplace Rules / Policies. Under the standard of Stericycle, if an employee could reasonably interpret a workplace rule or policy to be coercive (thus “chilling” the right to concerted action), then the burden shifts to the employer to justify the rule or policy. For the rebuttal, the employer must illustrate that the rule or policy advances a legitimate and substantial business interest, and that the employer is unable to advance that interest with a rule or policy that is more tailored.
Basically, the NLRB, in Stericycle, states that the employer must “narrowly tailor its rules to only promote its legitimate and substantial business interests while avoiding burdening employee rights.” According to Stericycle, workplace rule or policy remains overbroad when “it could be narrowed to lessen the infringement of employees’ statutory rights while still advancing the employer’s interest…” “They [employers] simply need to narrowly tailor those rules to significantly minimize, if not altogether eliminate, their coercive potential. If employers do so, their rules will be lawful to maintain.”
Employee’s Perspective. The Stericycle analysis is to be conducted from the employee’s perspective: “[T]he Board will interpret the rule from the perspective of the reasonable employee who is economically dependent on her employer and thus inclined to interpret an ambiguous rule to prohibit protected activity she would otherwise engage in. The reasonable employee interprets rules as a layperson, not as a lawyer.”
Examples. If interested, footnote 46 of the opinion includes a long list of authorities and prior cases on the subject, including reference or allusion to policies that address employer policies that set an expectation of “positivity” or “cooperation” (for example) in the workplace, noting that such policies may be overbroad in that they are “not limited to conduct that would objectively be viewed as unprotected”.
NLRB Blog / Report on Stericycle. Board Adopts New Standard for Assessing Lawfulness of Work Rules.