Recently, the National Labor Relations Board adopted a new rule regarding handbooks and other workplace rules. The NLRB has passed by enforcing Section 7 of the National Labor Relations Act. That section guarantees the right to self-organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their choosing; "and to engage in other concerted activities for the purpose of … other mutual aid or protection." 29 U.S.C. § 157. Many attorneys assume this Act only applies to disputes between unions and companies. The NLRB does not see it that way.

The above-quoted part of Section 7 has been interpreted very broadly and can be applied to even the smallest businesses. The Act is premised upon the very broad powers of the interstate commerce clause of the Constitution. Certain practices are perceived as obstructing or impairing the free flow of interstate commerce. Regardless of whether the actions taken directly impact interstate commerce or not, if your firm is engaged in interstate commerce, it is subject to the NLRB rules.

 A recent rule change raised quite a few concerns. Previously, the rule was stated in Lutheran Heritage Village-Livonia, 343 NLRB 646, 646 (2004). It required that the alleged violation be demonstrated by “a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Usually, the focus was on whether an employee could reasonably construe the workplace rule as interfering with an aspect of Section 7. There was no presumption of a rule violation in construing whether an employee's reading was reasonable or not. An employer violates Section 8(a)(1) when it maintains a work rule that "would reasonably tend to chill employees in the exercise of their Section 7 rights." Nat'l Labor Relations Bd. v. Northeastern Land Services, Ltd., 645 F.3d 475 (1st Cir. 2011).

Then along came The Boeing Company, 365 NLRB No. 154 (N.L.R.B-BD 2017) decision. That decision specifically overruled Lutheran Heritage. The standard was altered to evaluate “two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.” The effort was to strike a balance between business justifications and the invasion of employee rights under the Act. Six years later, the rule changed yet again.

Then, on August 2, 2023, Stericycle, Inc., 372 NLRB No. 113 was decided. It throws out Boeing and then “builds on and revises the Lutheran Heritage standard.” The standard now is whether the handbook or workplace rule being challenged has a “reasonable tendency” to chill employees' Section 7 activity. The Board, however, “will interpret the rule from the perspective of an employee.” The modification to Lutheran Heritage was that now “an employer can rebut the presumption that a rule is unlawful by proving that it advances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule.”

The concern raised by many on the employer side of employment law is that the mere possibility that a rule could be construed to interfere with protected activity is enough, even if it is clear there was no such intent. If your firm has a handbook, it may be wise to review it, looking for any possible angle from which a provision might interfere with an employee seeking "mutual aid or protection.” Many claims alleging wrongful termination could be turned into an NLRB matter.