Employers Still Need to Follow NLRB’s Strict Handbook Rules – For Now What You Need to Know About Current Standard and When it Might Change With a new presidential administration now in place, many employers are hopeful that the National Labor Relations Board (NLRB) will return to more employer-friendly policies – especially those related to handbook policies. However, policy shifts at the Board take time, and any efforts to roll back Biden-era case law shaping this workplace standard will not happen overnight. Despite this year’s political shift, the Stericycle standard – which creates a stringent test for evaluating the legality of workplace rules – is still being applied by Administrative Law Judges (ALJs) across industries. Unfortunately for employers, recent rulings show that the doctrine likely won’t be narrowed in the immediate future absent direct action by a new Board. Until that happens, what does your company need to know about this problematic standard? Recap: What Is the Stericycle Standard? In its August 2023 Stericycle, Inc. decision, the Board: • Overruled the more employer-friendly Boeing Co. standard; • Adopted a new framework for evaluating facially neutral workplace rules and policies; • Declared that rules are presumptively unlawful if a reasonable employee could interpret them as chilling protected concerted activity under Section 7 of the NLRA; and • Placed the burden on employers to prove that any rule found presumptively unlawful is narrowly tailored to advance a legitimate and substantial business interest. This stricter approach has created uncertainty for employers. Many policies that employers would consider rather typical, including those addressing workplace conduct or social media use, may now be presumed unlawful unless clearly and specifically justified. Key Takeaway: The Stericycle standard remains a high bar for employers. Any rule that could potentially be read to discourage protected concerted activity may be struck down unless the employer can prove it is necessary and narrowly written. Employers should continue reviewing and updating workplace policies with this framework in mind. Recent Decisions Applying Stericycle Who helps shape and interpret how Stericycle applies in the real world? ALJs play a central role in defining what the standard means for employers. After a Complaint is issued alleging unfair labor practices, an ALJ conducts a hearing, reviews the evidence, and issues a decision with findings of fact and conclusions of law. While those decisions can be appealed to the Board, they often serve as the first and most practical interpretation of evolving Board precedent. Recent ALJ decisions across industries show that Stericycle is not a relic of the prior Board. It remains the law of the land, and employers cannot afford to ignore it. The following rulings reaffirm that ALJs continue to apply Stericycle as binding precedent when evaluating the legality of workplace rules and policies.
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