The National Labor Relations Board's recent decision in Stericycle, 372 NLRB No. 113 (Aug. 2, 2023), establishes a new standard for determining whether employer work rules violate the National Labor Relations Act. All employers  — whether union or non-union — should take a second look at their work rules and handbooks with this decision in mind.

Section 7 of the NLRA protects the rights of employees to organize, form, join or assist labor organizations, to bargain collectively and "to engage in other concerted activities for the purpose of bargaining or other mutual aid or protection." It is applicable to union and non-union employees alike. The question of what work rules infringe on Section 7 rights has been a topic of considerable dispute and controversy. For example, does a rule mandating civility in the workplace or non-disparagement of the employer on social media infringe on employees' right to engage in concerted activity? Sometimes? Always? Never?

In Boeing Co., 365 NLRB No. 154 (2017) the board created a three-category system for evaluating work rules, deeming them universally legal, conditionally legal or universally illegal. For facially neutral rules that may be conditionally legal, it applied a balancing test between the employer's legitimate business interests (such as maintaining discipline) and the employee's right to exercise Section 7 rights.