On August 1, 2023, The National Labor Relations Board (NLRB or the Board) made a significant adjustment to the standard for assessing the facial lawfulness of employer work rules. This was not merely a policy tweak, this was a 3-1 decision that overruled existing precedent. As a result, all employer work rules that reasonably could be read to restrict Section 7 activity are now considered presumptively unlawful under federal labor law.
At the heart of this decision is Section 7 of the National Labor Relations Act, which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The implications of this decision are significant for both employers and employees. Previously, certain work rules could be implemented by an employer without violating Section 7, provided they did not explicitly restrict protected activities, were not adopted in response to such activities, and were not applied to restrict such activities.
However, with this recent NLRB decision, any work rule that could reasonably be interpreted as restricting Section 7 activities – irrespective of the intent behind the rule, its wording, or the context in which it is implemented – is now considered presumptively unlawful. Employers will therefore need to exercise increased caution when formulating and implementing work rules.
While this decision represents a significant shift in labor relations law, it isn’t yet clear how it will be applied in practice. Legal experts and employers alike are keenly watching for any test cases that could provide clearer guidance on interpreting and implementing this new standard.
To read more about this noteworthy decision, the full review is available
here.