NLRB Dumps Trump-Era Neutral Workplace Standard

In a long-awaited decision, Stericycle, Inc., 372 NLRB No. 113, the National Labor Relations Board rewrote its standards for assessing whether facially neutral workplace rules chill employees’ Section 7 rights under the National Labor Relations Act. The change is significant and will have an impact on employers whether their employees are unionized or engaging in organizing activities. It rejected the Trump-era Boeing standard, finding that it allowed “employers to adopt overbroad work rules that chill employees’ exercise of their rights under Section 7.” In doing so, it noted that employees interpret ambiguous rules as prohibiting “statutorily protected activities” because of their economic dependency and fear of being discharged. The Stericycle standard shifts the burden onto the employer after the General Counsel shows that a challenged rule has a reasonable tendency to chill employees from exercising their Section 7 rights. This is viewed from the perspective of an employee subject to the rule, economically dependent on the employer, who contemplates engaging in protected activity. The Hogan Lovell’s attorneys who wrote the above-referenced article state that decisions finding work rules to be categorically valid under the previous Boeing standard are no longer good law.