E-Alert: NLRB Development

The purpose of this E-Alert is to inform firm clients about some important developments under federal labor law and the National Labor Relations Board’s (“Board”) recent enforcement activities.

In mid-2023, the Board issued a decision, Stericycle, 372 NLRB No. 113 (2023), wherein it adopted a new standard related to employer policies.   In short, the Board determined that if an employer rule or policy has a reasonable tendency to chill employees from exercising their rights, it is presumptively unlawful. Although the employer has the ability to prove a defense, this new employee-friendly standard grants the Board broader authority to attack employer policies.

The Felhaber firm has been carefully monitoring the Board’s enforcement activities.   Unfortunately, we are seeing an increased number of citations.  In a recent example, the Board faulted an employer for maintaining a wage disclosure policy that tracked almost identically the requirements of Minnesota Statutes Section 181.172.     Nonetheless, and despite the existence of the Minnesota law, the Board found that certain statements in the policy violated the federal National Labor Relations Act.

Unfortunately, we expect the Board will continue to aggressively scrutinize employer policies.   We are encouraging our clients to contact a member of the labor and employment group to discuss the impact of Stericycle and to review and revise (as necessary) certain employment policies.