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NLRB Sets New Rules for Evaluating Employee Rights Violations

After months of nationwide high-profile labor and employment disputes, the National Labor Relations Board (NLRB) has set new standards for evaluating employee rights violations. These standards come from its decision in the case Stericycle, Inc., 372 NLRB No. 113 (2023). 

Under its new standard, the NLRB will take a much more employee-friendly approach when determining if a company’s workplace rules violate the National Labor Relations Act (NLRA). This law primarily addresses “labor relations,” such as unionization, but it heavily impacts other elements of employment law as well. 

By revising its approach to evaluating company rules for rights violations, the NLRB has made it easier for all employees to exercise their rights. Let’s explore how the NLRA protects workers nationwide, how the NLRB has changed its evaluation approach, and what that means for you. 

Your Right to Free Speech Under the NLRA

One of the laws that makes the US unique is the enshrinement of free speech as a fundamental right. However, freedom of speech means that the government may not restrict or penalize people from saying things; it does not prevent private parties from choosing to end relationships over someone’s statements. 

This means that in at-will employment states like California, employers can fire workers who make statements they disagree with. For example, it is usually legal for an employer to terminate someone for swearing or making crude remarks. However, laws like the NLRA designate types of protected speech and activities that cannot be used to make adverse employment decisions. 

The NLRA is a remarkably broad law that applies whether employees are on the clock or off-duty. Under the law, protected activities include things like:

  • Complaining about workplace issues with colleagues or in public
  • Speaking to reporters, the public, or the employer’s customers or vendors about working conditions and concerns
  • Talking about pay, benefits, and working conditions among coworkers
  • Making safety reports to state or federal agencies
  • Organizing or going on strike

Of these activities, only the last is limited to unionization efforts. The rest are common occurrences in most workplaces, regardless of whether the employees want to unionize. The NLRA protects all workers, not just organized groups.

NLRB Standards After the Stericycle, Inc. Decision

One of the major duties of the NLRB is reviewing potential violations of the NLRA. This includes reviewing company rules to see if they may have a “chilling” effect that discourages workers from exercising their rights. 

Since 2017, the agency has performed these reviews based on the standard it set in its decision on Boeing Co. (2017). Under the Boeing standard, the NLRB stated it would consider the impact of “reasonably interpreted” workplace rules on workers’ ability to exercise their rights and the employers’ justifications for the rules. This standard was interpreted as being particularly favorable for employers because it instructed the Board to deem rules to be lawful if employers’ needs outweighed their potential adverse impacts on employee rights. In other words, the Boeing standard meant that employers’ profits could be and were prioritized over individuals’ rights. 

In the Stericycle decision, the NLRB reversed its stance. In its new decision, it stated that the Boeing standard permitted employers to “adopt overbroad work rules that chill employees’ exercise of their rights” and that employers were not required to tailor their rules to promote their “legitimate and substantial business interests without unnecessarily burdening employee rights.” 

The new standard is heavily employee-focused. The Board states that future and currently active rule reviews will be performed “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.” In other words, the NLRB will not take into account the employer’s justifications for rules and will instead focus entirely on the perspective of a potential employee. If it is found that an employee could reasonably interpret a rule to be restrictive, then it will be deemed unlawful. 

Do Your Employer’s Rules Violate Your Rights?

The Stericycle standard is excellent news for workers nationwide. The Board has clarified what constitutes protected actions by broadening the definition of unlawful rules. More importantly, the new measure makes it clear that simply having unlawful rules on the books could violate employee rights, regardless of enforcement. 

Examples of unlawful rules under the NLRA include prohibitions on:

  • Complaining about your employer in private or public
  • Talking to reporters or attorneys about your working conditions
  • Making “whistleblower” reports to safety agencies

The NLRB is responsible for reviewing rules that may violate the NLRA. Employees can report these violations but may not file a lawsuit in civil court. However, workers can hold companies accountable if they suffer from adverse action because of these rules. If you are retaliated against for engaging in protected activity like that which the NLRA covers, you can file a claim against your employer to pursue back pay and other damages. 

Defending Your Right to Protected Activity in California Workplaces 

The legal tide is turning in favor of employees. There has never been a better time to hold your employer accountable for violating your rights in the workplace. If you have had your hours or pay cut or been terminated for exercising your rights under the NLRA, you could have a claim against your company. If so, you should talk to the expert California employment attorneys at Le Clerc & Le Clerc LLP. Our employment law firm is dedicated to representing workers who have experienced retaliation and discrimination in the workplace. Schedule your appointment with our attorneys today to discuss your situation and learn more about how to pursue justice for workplace retaliation.

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