In a troubling decision released yesterday, the National Labor Relations Board (the Board) issued a new standard for reviewing workplace rules that do not expressly prohibit activity protected under the National Labor Relations Act (the Act) and reversed the frameworks set forth in the 2017 Boeing case. The new standard evaluates whether a reasonable worker who is “economically dependent on the employer” would interpret the rule to prohibit organizing or engaging in concerted activities. This new standard applies to all work rules and employee handbooks in both unionized and non-unionized workplaces.

A work rule is unlawful under the Act when the rule has a reasonable tendency to chill employees’ exercise of their rights under the Act. Under the new Stericycle standard, an administrative law judge (ALJ) or the Board will interpret the rule from the perspective of an employee who is economically dependent on the employer. Any ambiguity in the rule will be construed against the employer. If an economically dependent employee could reasonably interpret the rule to restrict or prohibit concerted activity under Section 7 of the Act—even if a different, reasonable and lawful interpretation is possible—the rule is presumptively unlawful and invalid. The employer’s business reason for adopting the rule, for example, safety or protection of confidential information, does not matter. If the rule is found to be presumptively unlawful, the employer’s only defense would be to establish that that the its “legitimate and substantial business interest” could not be accomplished by a more narrowly tailored rule.

In light of the decision in Stericycle, employers should review their employee handbooks, policies, procedures, employment agreements and other workplace rules to ensure that such documents are narrowly tailored to effectuate the purpose of the intended rules without creating an opportunity for argument that the rule has a chilling effect on concerted activity.