The National Labor Relations Board (NLRB or Board) has crafted a new standard that will make it more difficult for an employer to apply an otherwise neutral workplace conduct rule without violating federal labor law. Stericycle Inc., 372 NLRB No. 113 (August 2, 2023), adopted a “reasonable tendency to chill” test, under which a challenged workplace rule or policy is presumed to be illegal if the Board finds that it has a reasonable tendency to chill employees’ exercise of their NLRA rights. In adopting this subjective standard over the strong dissent of the Board’s lone Republican member, the NLRB’s Democratic majority threw out the Boeing standard adopted by the Trump-era NLRB in 2017. When determining whether a rule violated the NLRA, the Boeing standard weighed both the employer’s justification for the workplace rule and its potential impact on employees’ NLRA rights.
Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here.