On August 2, 2023, the National Labor Relations Board issued its long-anticipated decision in the Stericycle case. Employer policies and work rules will come under greater scrutiny. Any rule or policy that an employee would reasonably perceive as tending to have chilling effect on protected collective activity will be presumptively unlawful unless the employer can prove (a) the rule or policy advances a legitimate and substantial business interest and (b) the employer is unable to advance that interest with a more narrowly tailored rule.
This new standard applies to non-union employers in the private sector as well as to unionized employers.
The details of the NLRB’s new approach are troubling. When determining whether an employee would perceive a rule or policy as having a chilling effect, the NLRB will not consider the perspective of “reasonable employee,” but of an employee who is both economically dependent on his or her job and who is considering engaging in protective activity – that is, an employee who has an incentive to detect a chilling effect. Second, if it is reasonable to interpret a rule or policy as having a chilling effect, the rule or policy will be presumptively unlawful even if it could equally well be interpreted as not having a chilling effect. Third, the employer’s intentions are irrelevant.
If a rule or policy is found to have a chilling effect under this generous standard, the employer must then pass a strict standard to justify it. Not only must the employer demonstrate a legitimate and substantial business interest. It must also show that there is no alternative rule or policy that can advance that interest. This is the same “strict scrutiny” standard that the courts apply in cases involving government action that impinges on fundamental freedoms and, as one may guess, is a difficult standard to meet.
It is time for private sector employers to carefully review their policy manuals and work rules. Employers with questions regarding this new ruling should contact Trimboli & Prusinowski, L.L.C., at (973) 660-1095.
