Review work rules in light of NLRB's new pro-employee ruling.

As political winds shift, so do National Labor Relations Board rulings. Nowhere has this been more apparent than in the realm of cases addressing worker rights under Section 7 of the National Labor Relations Act.

That's the part of the law that guarantees all workers--whether they belong to a union or not--the right to engage in "concerted activities" for the purpose of discussing working conditions and banding together to improve them.

At issue: How far employers can go to set work rules and handbook policies that may infringe on employees' Section 7 rights.

Section 7 has been a political football for 20 years, with NLRB rulings alternating between proemployee and pro-employer interpretations whenever control of the White House flips to a different political party.

On Aug. 2, a Democratic-majority NLRB dramatically shifted the Section 7 scales in employees' favor with its ruling in Stericycle, Inc. and Teamsters Local 628.

In a 3-1 ruling, the NLRB said it would now presume to be illegal any work rule that could conceivably chill worker rights to engage in concerted, protected activities. It said employers can only overcome that presumption by proving that a rule advances a legitimate, substantial business interest and that there is no less-restrictive way to accomplish that goal.

Employers must now review all their workplace rules and handbook policies to ensure they don't violate the new Stericycle standard.

NLRB's Section 7 cycle

Stericycle reversed a 2017 Trump-era NLRB decision (Boeing Company) that affirmed the right of employers to establish "facially neutral" rules and policies as long as they did not explicitly violate the NLRA. Boeing upheld a longstanding rule established by the military aircraft manufacturer banning use of cameras on its property, including cell phones and laptops with built-in cameras. A union unsuccessfully argued that prevented employees from exercising their NLRA rights.

The Boeing decision itself reversed a 2004 NLRB ruling (Lutheran Heritage) that held that a seemingly neutral work rule that did not restrict employees' rights to engage in concerted activity would nevertheless be considered unlawful if employees might "reasonably construe" the rule to prevent them from exercising their rights.

Stericycle essentially turned back the clock, restoring the proemployee standard set with Lutheran Heritage.

'Coercive' rules

In reaching its conclusion in Stericycle, the NLRB asserted that many employer work rules...