NLRB Decision Empowers Employees on Workplace Rules

On August 2, 2023, the National Labor Relations Board (NLRB) overruled its prior 2017 decision, Boeing, and tilted the balance in favor of employee rights when it comes to deciding if workplace rules maintained by private-sector employers—whether those employers are unionized or not – are valid or unlawful.

The NLRB ruled that certain categories of work rules—such as investigative-confidentiality rules, non-disparagement rules and rules prohibiting outside employment—are not always lawful to maintain. The Board held that the Boeing standard was overly broad and thus permitted employers to implement work rules that chilled employees' exercise of their rights under the National Labor Relations Act (NLRA).

The NLRB decision said, “Boeing condoned overly broad work rules by not requiring the party drafting the work rules—the employer—to narrowly tailor its rules to only promote its legitimate and substantial business interests while avoiding burdening employee rights. The standard we adopt today remedies these fundamental defects."

The employer's intent in maintaining a work rule is immaterial, the NLRB wrote. The Board instead clarified it will interpret the rule from the perspective of an employee who is subject to the policy, economically dependent on the employer and contemplates engaging in protected concerted activity.

Concerted activity includes talking with one or more co-workers about wages and benefits or other working conditions, circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, openly talking about pay and benefits, and joining with co-workers to talk directly to the employer, an agency or the media about problems in the workplace, according to the NLRB.

The decision is Stericycle, Inc. and Teamsters Local 628, Case 04-CA-137660, issued 8.2.23.