The National Labor Relations Board has issued a highly anticipated decision in Stericyle, Inc., 372 NLRB No. 113 (2023) where the Board adopted a new legal standard for determining the lawfulness of facially neutral work rules under Section 8(a)(1) of the National Labor Relations Act (Act). The new standard announced in Stericyle makes it easier for employees (regardless of whether they are represented by a union) to challenge work rules that can reasonably be interpreted to restrict employees' rights under the Act to engage in protected concerted activity.
The Board's decision in Stericyle overturns its prior precedent in The Boeing Company, 365 NLRB No. 154 (2017), where the Board endorsed the use of rule "categories" to assist employers with assessing the lawfulness of work rules. The Board rejected Boeing's categorical approach that treated certain work rules as always lawful if the employer's justification for the work rule outweighed the rule's potential impacts on Section 7 rights. The Board announced that it is returning to a case-specific approach in which the Board will examine "the specific wording of the rule, the specific industry and workplace context in which it is maintained, the specific employer interests it may advance, and the specific statutory rights it may infringe upon."
Under the new standard announced in Stericyle, if an employee could reasonably interpret a work rule to have a coercive meaning (i.e. prohibit/discourage employees from engaging in...
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