The National Labor Relations Board (the “Board”) issued its long-awaited decision regarding employer work rules that impacts both unionized and non-unionized workplaces. In Stericycle, the Board altered the standard for whether a seemingly neutral workplace rule is nevertheless unlawful. Now, for such a rule to be unlawful, the General Counsel must only prove that the rule has a “reasonable tendency” to chill employees from exercising their rights under the National Labor Relations Act. The new standard is a return to a more expansive interpretation of Section 7 Rights and erodes the balancing test that has been in place since the Board’s Boeing decision. 

The Board made clear that under the new standard employers may still rebut the General Counsel’s showing by proving that the rule advances a legitimate and substantial business interest. The employer must also demonstrate that they are unable to advance that same interest with a narrower rule.

The Board also stated that the new workplace rule standard will be applied retroactively, meaning any workplace rules currently in place will be evaluated under this new standard. If an employer is engaged in a pending case regarding a workplace rule, that rule will also be evaluated under the new standard. The remedy in such a case will be to rescind the rule.

Employers should contact their Polsinelli attorneys for assistance in reviewing their workplace rules and handbooks.