California employers take note: The rules you have in your handbooks about workplace conduct may need to be revised rather quickly.
On August 2, 2023, the National Labor Relations Board (NLRB) issued a ruling on Stericycle, Inc., N.L.R.B., Case 04-CA-137660 that undoes the previously established standard set forth by the Trump-era NLRB’s Boeing Co. decision that was made in 2017. The Stericycle decision passed with a 3-1 vote, with lone Republican Board Member Marvin Kaplan dissenting.
What does the new standard say?
In essence, employers are allowed to have workplace policies only so long as they are narrowly tailored to advance substantial, legitimate business interests with minimal risk of putting a chilling effect on workers’ collective actions and Section 7 rights.
This is very similar to the old 2004 Lutheran Heritage standard. Employer policies will likely be ruled unlawful whenever an employee can reasonably interpret them as a restriction of their rights to organize, engage in collective bargaining or other concerted activities – even if the employer had no such intention.
Furthermore, the new standard is to apply to both non-unionized and unionized workplaces, and retroactively. In Kaplan’s dissent, he pointed out that while the majority held that Boeing put too much weight on the employers’ interests, the reversal basically tips the scales in the other direction and “inherently privileges employee rights while placing scant, if any, weight on employer interests.”
It may be a while before the full impact of the new ruling is felt, as the board’s current ruling doesn’t really clarify what makes any restriction serve a “legitimate and substantial” business interest.
With that in mind, California employers should carefully consider their workplace rules, especially as it pertains to social media policies, confidentiality rules and employee discipline, and make any necessary adjustments. It would be also wisest to anticipate significant NLRB challenges to disciplinary actions when an employee alleges that their Section 7 rights have been infringed by some workplace policy.