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NLRB Invites Briefs on Employer Work Rules Standard
Practical Law Legal Update w-034-0315 (Approx. 5 pages)
NLRB Invites Briefs on Employer Work Rules Standard
by Practical Law Labor & Employment
| Law stated as of 02 Aug 2023 • USA (National/Federal) |
In Stericycle, Inc., the National Labor Relations Board (NLRB) invited briefs regarding whether it should adopt a new legal standard to apply in cases where an employer's maintenance of a facially-neutral work rule is alleged to violate Section 8(a)(1) of the National Labor Relations Act (NLRA).
On January 6, 2022, in Stericycle, Inc., the panel (Board) heading the NLRB's judicial functions issued a notice and invitation to the parties and interested amici to submit briefs regarding whether the Board should adopt a new legal standard to apply in cases where an employer's maintenance of a facially-neutral work rule is alleged to violate Section 8(a)(1) of the NLRA. Specifically, the Board requested input on the following two questions:
- Should the Board continue to adhere to the standard adopted in Boeing Co. and revised in LA Specialty Produce Co. (365 N.L.R.B. No. 154 (Dec. 14, 2017); 368 N.L.R.B. No. 93 (Oct. 10, 2019))?
- In what respects, if any, should the Board modify existing law addressing the maintenance of employer work rules to better ensure that:
- the Board interprets work rules in a way that accounts for the economic dependence of employees on their employers and the related potential for a work rule to chill the exercise of Section 7 rights by employees?;
- the Board properly allocates the burden of proof in cases challenging an employer's maintenance of a work rule under Section 8(a)(1)?; and
- the Board appropriately balances employees' rights under Section 7 and employers' legitimate business interests?
- Should the Board continue to hold that certain categories of work rules are always lawful to maintain, such as:
- investigative-confidentiality rules as addressed in Apogee Retail LLC d/b/a Unique Thrift Store (368 N.L.R.B. No. 144 (Dec. 16, 2019)?;
- nondisparagement rules as addressed in Motor City Pawn Brokers (369 N.L.R.B. No. 132 (July 24, 2020))?; and
- rules prohibiting outside employment as addressed in Nicholson Terminal & Dock Co. and G&E Real Estate Management Services d/b/a Newmark Grubb Knight Frank (369 N.L.R.B. No. 147 (July 30, 2020); 369 N.L.R.B. No. 121 (July 16, 2020))?
Members Kaplan and Ring dissented.
Through the E-Filing portal:
- Initial briefs by the parties or amici must be submitted by March 7, 2022.
- Responsive briefs by the parties must be submitted by March 22, 2022.
UPDATE:
On August 2, 2023, a Board majority overruled Boeing and LA Specialty Produce, as well as the subsequent work rules decisions applying the categorical classification system articulated therein, and adopted a new burden-shifting standard for evaluating facial challenges to employer work rules that do not expressly restrict employees' protected concerted activity under Section 7 of the NLRA. Under the new analysis, the Board will find a challenged work rule presumptively unlawful under Section 8(a)(1) if the General Counsel proves that the rule has a reasonable tendency to chill employees in the exercise of their Section 7 rights, to be assessed based on the perspective of an economically dependent, layperson employee who contemplates engaging in protected activity and regardless of whether an alternative, noncoercive interpretation of the rule also is reasonable. However, the employer may rebut this presumption by showing that the rule advances a legitimate and substantial business interest that cannot be achieved by a more narrowly tailored rule. If the employer carries this burden, the rule will be found lawful to maintain. (Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023); for more information on this decision, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules.)