On August 2, the National Labor Relations Board issued its decision in Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023), announcing yet another test for determining whether employer policies that are facially neutral might nevertheless be deemed violative of employee rights to organize and act in concert with other employees. This issue has been a point of contention for decades, and legal tests have come and gone as newly-constituted Boards under different Presidential administrations have swung the needle back and forth in favor of employees or employers. This most recent opinion moves back towards the protection of employee rights, but includes the possibility of an affirmative defense for employers.
The new test emphasizes that any facially neutral rule must be read “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.” To prove that a rule is unlawful, the Board’s General Counsel must show that a challenged rule has a reasonable tendency to chill employees from exercising their Section 7 rights; “if an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden, even if a contrary, noncoercive interpretation of the rule is also reasonable.” For example, in Stericycle, a rule prohibiting employee conduct “that maliciously harms or intends to harm the business reputation” of the Company was...
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