Employee handbooks and regulations are an important part of every business. These rules provide transparency and clear communication as a means to limit or avoid legal liability. On August 2, 2023, the National Labor Relations Board (NLRB) released a broad-sweeping update to the legality of handbooks and employee policies with the decision, Stericycle, Inc. This decision increases potential liability for most all private employers. Here are a few important takeaways.

1. The NLRB has jurisdiction over almost all private employers, with the established purpose of minimizing the interference of employers into employees’ expression of concerns relating to their working conditions. The NLRB’s jurisdiction applies even if a workforce is not unionized – although the National Labor Relations Act (NLRA) also protects rights surrounding unionizing.

2. The Stericycle, Inc. decision requires that legal challenges to workplace rules now be viewed from the perspective of the employee. More specifically, the NLRB analyzed that it now views all employee policies as to whether they have a “reasonable tendency” to discourage employees from engaging in protected activity. Protected activity under the NLRA includes employees talking about the terms and conditions of their employment (including negative talk or “complaining”). In Stericylce, Inc., the NLRB opined that an employer’s intent in developing a workplace rule is immaterial and that the correct lens is whether the employee could “reasonably interpret the rule to have a coercive meaning.”

3. Given its broad language, the Stericylce, Inc. decision calls into question existing social media, non-disparagement, confidentiality, and break policies (among others). While the NLRB stated that employers can defend an existing rule by showing that it “advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule,” – I recommend that employees “tighten” existing limits of employees’ expression of speech. A failure to do so could result in legal exposure. I further recommend employers review how the NLRB and courts apply the Stercicyle, Inc. decision in the coming weeks and months. This guidance will assist employers and employees seeking to navigate the new standard.

Feel free to reach out to me to discuss your organization’s employee handbook or policies.