This year the NLRB has been flexing its muscle. In its February 21st McLaren Macomb decision the NLRB attacked non-disparagement and confidentiality provisions in non-supervisor severance agreements. On May 30th the NLRB General Counsel took aim at non-compete agreements (see my June 5th blog https://tnemploymentlawblog.com/2023/06/05/the-nlrb-takes-aim-at-non-compete-provisions/). And, to complete its own unholy trinity, on August 2nd the NLRB set a new standard for deciding whether employer work rules that do not expressly restrict protected activity still violate the NLRA.
In Stericycle Inc. the Board held that a workplace rule is presumptively unlawful if an employee could reasonably interpret the rule to restrict or prohibit the right under Section 7 of the NLRA to engage in concerted activity pertaining to the terms and conditions of employment. The Board applied the reasonable employee standard because the employee is economically dependent on the employer and thus inclined to interpret an ambiguous rule to prohibit protected activity under the NLRA.
If the General Counsel meets the above standard the rule is presumptively unlawful. The employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.
Please note that Stericycle applies going forward and retroactively! As a result, employers should immediately begin a review of existing workplace rules.
Rules or policies that have a high likelihood of being presumptively unlawful include personal conduct, conflict of interest, communications with the media, non-disparagement, workplace gossip and confidentiality of harassment investigations, among others.
Rules that expressly restrict protected activity, such as rules which prohibit union activity or discussing wages and salaries, are not impacted by Stericycle and are still unlawful.
The NLRB has added a lot to employers “To Do” lists this year. Make sure you consult with your employment law attorney to help you complete that list.
Tennessee Employment Law 