Workplace conduct rules further restricted by the NLRB

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On August 02, 2023, the National Labor Relations Board issued a decision (Stericycle, Inc.) that established a new standard for scrutinizing employee conduct rules under Section 8(a)(1) of the National Labor Relations Act. This decision states that prior standards for workplace conduct rules issued by the NLRB, permitted employers to adopt overbroad work rules that chill employees’ exercise of their rights.

Under the new standard adopted in Stericycle, an employee conduct rule that has a reasonable tendency to chill employees from exercising their rights is presumptively unlawful. The rule can be upheld if the employer shows 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. Applying these new standards will not be easy as these concepts are amorphous but it is clear that a broad range of rules are at risk. Just a few of the rules and policies that are potentially impacted by this decision include subjects such as: inappropriate conduct/behavior; insubordination; social media content; use of phones/devices; and photo/video recording of the workplace.

In order to meet these onerous standards, employers should review their employee handbooks and policies with assistance of counsel. Ideally, policies addressing employee conduct should contain an explanation of the specific legitimate business objective and how that policy is necessary to achieve that objective.