NLRB Revises Test For Evaluating Workplace Policies

On August 2, 2023, in Stericycle, Inc. (Stericycle), the National Labor Relations Board (the Board) revised the test for determining whether an employer's workplace policies comply with the National Labor Relations Act (the NLRA). Stericycle reverses the Board's 2017 decision in Boeing Co. (Boeing), which outlined a balancing test between a policy's impact on a worker's NLRA rights, and an employer's legitimate business justification for the rule. With Stericycle, the Board adopted a new test: specifically, could a worker reasonably read, or interpret, a workplace policy as restricting his or her NLRA rights? The Stericycle test is a modified version of the Lutheran Heritage Village-Livonia test, which Boeing superseded. However,unlike Lutheran Heritage, Stericycle creates a rebuttable presumption that a workplace policy is unlawful unless an employer can prove that the policy serves "legitimate and substantial business interests that cannot be achieved by a more