On March 7, the NAM filed an amicus brief with the National Labor Relations Board urging the Board to maintain its current standard for determining whether an employer’s facially neutral work rule violates the National Labor Relations Act. In this case, Stericycle, Inc. and Teamsters Local 628, an administrative law judge held that three of Stericycle’s work rules, including a rule that prohibits retaliation against employees who report discrimination or harassment or participate in a discrimination or harassment investigation, violated the NLRA. Work rules encompass a wide variety of policies and employee handbook provisions that advance and protect vitally important interests like attendance, scheduling and time off; non-harassment, non-discrimination, and DE&I; and workplace safety and operating procedures. In 2017, the NLRB adopted a standard for evaluating work rules that properly balances a rule’s potential impact on NLRA-protected rights with the rule’s legitimate justifications. The NLRB recently invited interested amici to file briefs regarding whether that standard should be retained or modified to a more employee-friendly standard.
In response to the specific questions posed by the Board, the NAM's brief argues that any evaluation of work rules, employment policies, and employee handbook provisions should
consider both a rule’s potential “chilling” effect regarding NLRA-protected rights, as well as
legitimate business justifications and the obligations imposed on employers by other laws. If the Board does modify the current standard, it should allow employers to implement standard disclaimer language in their rules, policies, or handbooks, that avoids an interpretation that would unlawfully interfere with protected rights under the NLRA. Further, rules requiring confidentiality in open workplace investigations, non-disparagement rules, and policies barring outside employment should continue to be deemed generally lawful.
Unfortunately, on August 2, 2023, the Board announced a new approach for determining whether an employer’s facially neutral work rule violates the NLRA. Under the Board’s new approach, "[i]f an employee could reasonably interpret a rule to restrict or prohibit Section 7 activity, the General Counsel has satisfied her burden and demonstrated that the rule is presumptively unlawful”" An employer can only "rebut the presumption by proving that the rule advances a legitimate and substantial business interests, and that the employer is unable to advance that interest with a more narrowly tailored rule." The Board remanded the case to the ALJ for further consideration in light of its new standard.