Last Updated on August 14, 2023

The recent landmark ruling by the National Labor Relations Board (NLRB) on August 2, 2023 in the Stericycle case sets a new standard for employers’ handbooks and policies, requiring many to be reviewed and potentially revised. This momentous decision will impact countless workplace rules and applies to the vast majority of private-sector employers in America, regardless of whether they are unionized.

New NLRB Standard For Handbooks Introduced

The NLRB’s new standard for determining whether work rules violate the National Labor Relations Act (NLRA) focuses on how employees may interpret those rules. The ruling provides that if a work rule can be reasonably interpreted to have a coercive meaning, it may be considered to have a tendency to chill employees from exercising their NLRA rights. This represents a shift in approach, where the employer’s intent in maintaining a rule is immaterial. The focus now lies on the employee’s perspective and their economic dependency on the employer.

The NLRA protects what’s referred to as “concerted activity.” This includes actions such as talking with co-workers about working conditions, circulating petitions for better hours, openly discussing pay and benefits, and more. If a rule has a reasonable tendency to chill such activities, the burden falls on the employer to prove that the rule serves a legitimate and substantial business interest and cannot be more narrowly tailored.

Case-by-Case Evaluation

The Stericycle ruling also shifts away from previous decisions that regarded certain types of policies as inherently lawful. Instead, there is now a preference for evaluating each challenged policy on a case-by-case basis. This change emphasizes the need for careful consideration of policies included in the employer handbook.

Reviewing and Rewriting Policies

Given the significant changes introduced by this ruling, employers are urged to take a fresh look at their policies. Many existing policies may now be subject to challenge and need to be reviewed and potentially rewritten to align with the new board standard.

This includes rules that govern a wide array of areas such as social media usage, criticism of company management, restrictions on workplace behaviors, and more. Employers should have their current handbook reviewed to ensure its current employment policies are in compliance with the new standard.

What’s Next?

Though the decision will likely be appealed, it may take many months or even years for the appellate process to conclude. In the meantime, the new standard will be enforced, creating potential risks for employers whose policies may now be found non-compliant. Penalties could include backpay awards, negative effects on union election outcomes, and other sanctions.

Conclusion

The Stericycle ruling represents a significant shift in labor law, with wide-ranging implications for workplace policies and procedures. The introduction of a new standard emphasizes the interpretation of work rules from an employee’s perspective and puts a greater burden on employers to justify these rules.

Employers must be aware of the new standard, recognizing that many existing policies may now come under new and intense scrutiny by the NLRB. The proactive review and revision of policies in light of this landmark decision will be crucial to ensure compliance and mitigate potential legal risks.

Contact MyHRConcierge to Review Your Handbook Today

Let MyHRConcierge’s SHRM certified HR consultants help ensure your handbooks are compliant with the new NLRB standard. Contact us at ccooley@myhrconcierge.com, 855-538-6947 ext 108 or schedule a consultation below: