A recent decision by the National Labor Relations Board (NLRB) could have significant implications for employers and their HR policies, even in non-unionized workplaces. In a case decided on August 2, 2023, known as Stericycle, Inc., the NLRB has potentially changed the landscape of employment law by reversing a previous 2017 decision regarding the analysis of whether employer rules infringe on employees’ rights under the National Labor Relations Act (NLRA).
Under the NLRA, employees have certain protected rights, such as engaging in concerted activities for mutual aid or protection. Traditionally, this has been interpreted to mean employee activities related to self-organisation, bargaining collectively, or other activities for the purpose of collective bargaining or preserving other mutual aid or protection rights.
The Stericycle, Inc. case is part of a continued effort to roll back precedents set under the Trump administration, which often favored employer rights over worker protections. The specifics of the Stericycle decision remain unclear, but the Board’s decision suggests that even seemingly innocuous rules and policies might now be seen as violating the NLRA.
One such example could be rules around behavior at work or confidentiality policies. Traditionally seen as commonplace and necessary, such rules may now have to face additional scrutiny to ensure they do not unintentionally infringe upon the rights of employees under the NLRA.
This move by the NLRB signals a potential sea-change in how employers interpret and apply their rules and policies, with the burden of compliance potentially shifting even more heavily onto the employers. This could particularly affect large corporations and international law firms that maintain substantial HR departments and have a wide range of rules and policies in place.
Legal professionals, particularly those working in employment law, should pay close attention to this development and what it may portend for the future of employment rule-making. The Stericycle, Inc. case underlines the trend towards increased protection of employees’ rights and further roll back of the Trump-era standards, highlighting the importance of staying abreast with changes in employment law.