The recent decision by the National Labor Relations Board (NLRB) in Stericycle has sparked significant controversy and debate. The decision, which was split along partisan lines, overturned a Trump-era precedent that provided clear categories for employer work rules. This shift has complicated the understanding of work rules for employers and created challenges similar to those experienced during the Obama administration.
Return to the Obama-era Board approach
Stericycle represents a return to the approach taken by the NLRB during the Obama era. This approach was known for its frequent challenges to employee policies, introducing uncertainty for employers. With Stericycle, we are likely to see an increase in similar challenges, potentially impacting a wide range of work rules.
Core Holding of Stericycle
The core holding of Stericycle relies on pre-Boeing NLRB case law and decades-old Supreme Court precedent. It asserts that employer work rules violate Section 8(a)(1) if a reasonable employee could perceive them as infringing upon their Section 7 rights. Importantly, the ruling takes into account the employee’s economic dependency on the employer. This interpretation broadens the potential for finding work rules in violation of the NLRA.
From a litigation standpoint
From a litigation standpoint, Stericycle now requires the NLRB General Counsel to demonstrate that an employer’s work-rule could be reasonably interpreted as infringing on Section 7 rights, with consideration for the employees’ economic dependency. This introduces a new threshold and standard for assessing the legality of work-rules.
Re-examining Work Rules
With the retroactive application of Stericycle, it is crucial for employers and their counsel to thoroughly reexamine work rules within company handbooks and standalone policies. It is essential to evaluate these rules through the lens of the framework established by Stericycle, which the NLRB will now use to evaluate their legality. This reassessment is particularly important for previously uncontroversial, facially neutral work rules that would have been deemed acceptable under the Boeing standard.
Unclear Justification for Work Rules
One aspect left unaddressed by the Board is what it considers sufficiently legitimate and substantial business interests that would allow employers to justify their existing and future work rules. Until further clarification is provided, employers and their counsel should refer to pre-Boeing NLRB law and its application by federal appellate courts as guiding principles in determining acceptable work rules.
Impact of Potential Alteration or Demise of Chevron Doctrine
Stericycle’s implications may extend beyond its direct effects. The looming question of whether the Chevron doctrine will be altered or overturned in the Supreme Court’s upcoming term casts a further shadow of uncertainty over future NLRB decisions. The potential changes in the Chevron doctrine could significantly impact labor law and how the NLRB interprets and enforces it.
The NLRB’s decision in Stericycle marks a significant shift in the adjudication of work rules and raises numerous concerns for employers. This return to the Obama-era approach creates uncertainty and potential challenges for employee policies. Employers and their counsel must stay informed of the developments in labor law, consult relevant precedent, and carefully evaluate their work rules, ensuring they comply with the new framework established by Stericycle. Additionally, the potential alteration or demise of the Chevron doctrine highlights the need for heightened vigilance in monitoring the Supreme Court’s upcoming term and its impact on labor law.