Jettisoning a Trump-era decision that in turn jettisoned an Obama-era approach to handbooks and policies, the NLRB, in a case entitled Stericycle, Inc., has returned to the more aggressive Obama-era approach. Now, the Board will return to reviewing the language of policies on their face for whether the Board believes the language could pose “a reasonable tendency to chill” NLRA-protected actions, and if so, find the employer in violation of the NLRA, even if the employer had no such intent. Revising the Obama-era approach slightly, now, employers will be able to assert an affirmative defense if they can prove that the language was “narrowly tailored” to advance a “legitimate and substantial business interest,” which it was otherwise unable to further without the language.

(O)ur (new) standard requires the General Counsel to prove that a challenged rule has a reasonable tendency to chill employees from exercising their Section 7 rights. We clarify that the Board will interpret the rule from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity. Consistent with this perspective, the employer’s intent in maintaining a rule is immaterial. Rather, if an employee could reasonably interpret the rule to have a coercive meaning, the General Counsel will carry her burden, even if a contrary, noncoercive interpretation of the rule is also reasonable. If the General Counsel carries her burden, the rule is presumptively unlawful, but the employer may rebut that presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, then the work rule will be found lawful to maintain.