Employers hoping for relief from the National Labor Relations Board’s (NLRB’s) employee-friendly burden-shifting process to determine if work rules violate the National Labor Relations Act (NLRA) will have to wait. The 2023 NLRB decision of Stericycle remains intact, and whether it will be overturned, though seemingly likely, remains uncertain.
In Stericycle, “the board established a new burden-shifting process for determining whether employer work rules or policies unlawfully restrict employees’ protected concerted activity under Section 7 of the NLRA,” said Tom Luetkemeyer, an attorney with Hinshaw in Chicago.
The board’s general counsel first must show that the challenged work rule has a reasonable tendency to chill employees from exercising their Section 7 rights, Luetkemeyer explained. Once the general counsel makes that showing, the rule is presumptively unlawful.
The employer can rebut the presumption by proving the rule advances a legitimate and substantial business interest that the employer is unable to advance with a more narrowly tailored rule.
“The board has imposed a significant evidentiary burden on employers,” Luetkemeyer said. “While the words of the burden-shifting test of Stericycle give the employer a chance, it will be extremely difficult to prevail, as an employer has to essentially prove that an alternative and more narrow policy will not only satisfy the burden of proof but also satisfy the board. Even policies laden with disclaimers...
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