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  • Writer's pictureFrank Kerbein

NLRB Adopts New Legal Standard for Evaluating Employer Work Rules

The National Labor Relations Board (NLRB), responsible for enforcing provisions of the National Labor Relations Act (NLRA), has adopted new legal standards for evaluating employer work rules.

Among the new provisions are employee rights protected under Section 7 which is the “right to self-organization, to form, join, or assist labor organizations, to bargain collectively... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Most private-sector employers are covered by the NLRA. As such, from time to time, the NLRB will develop legal standards for evaluating employer policies to see if they interfere with an employee’s Section 7 rights. The NLRB, a political body, changes standards over time depending on the current administration in charge. The Biden Administration NLRB has changed the framework for evaluating whether or not a company’s policies interfere with an employee's Section 7 rights.

A recent board decision on August 2nd, Stericycle, Inc., 372 NLRB No. 113 (2023) involved work rules addressing personal conduct, conflicts of interest, and confidentiality of harassment complaints. Under the new framework, the NLRB’s General Counsel must prove that the challenged rule has a reasonable tendency to chill employees’ exercise of their rights under the NLRA. If the General Counsel proves this, the rule or policy is presumed to be illegal. However, the employer may rebut that presumption 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. If the employer proves its defense, the rule will be found to be lawful.

The end result is the likely determination that more employer policies violate an employee’s Section 7 rights under the NLRA.


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