The Boeing case involved Boeing Company’s policy restricting the use of camera-enabled devices on its property — its “no camera” rule. Boeing argued that the rule was necessary to protect highly sensitive and classified information in its facilities. The administrative law judge hearing the case found that the rule violated the NLRA because under the Lutheran Heritage test, employees would reasonably construe the rule as prohibiting protected activity. The Board disagreed and adopted a new test.

Under the Boeing test, when evaluating a facially neutral policy, rule or employee handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate the nature and extent of the potential impact on NLRA rights, and legitimate justifications associated with the rule.

As the Board explained, this evaluation is consistent with its “duty to strike the proper balance between ... asserted business justifications and the invasion of employee rights in light of the Act and its policy.”

The Board went on to identify three categories of employment policies, rules and handbook provisions.

• Category One included rules that the Board designated as lawful to maintain, either because:
• The rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights (Category 1(a)); or
• The potential adverse impact on protected rights is outweighed by justifications associated with the rule (Category 1(b))1.
• Category Two included rules that warranted individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights and, if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
• Category Three included rules that the Board designated as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.

Employers operated under the Boeing categorical framework up until the NLRB adopted a new standard in 2023, the Stericycle standard, under which the Board placed more emphasis on protected rights and less on employer justifications.2

In Stericycle, the NLRB subsequently retooled its legal framework for assessing the legality of work rules and employer handbook policies when the majority adopted a test similar to what was in place before the 2017 change in Boeing Co.

Under the new Stericycle standard, an employer rule is presumptively invalid if it has “a reasonable tendency to chill employees” from exercising their rights under the NLRA. If so, then the rule is presumptively unlawful.

Under this new standard, the NLRB will interpret a challenged rule from the perspective of the “reasonable employee who is economically dependent on her employer and thus inclined to interpret an ambiguous rule to prohibit protected activity she would otherwise engage in.” In other words, the Board will look at a challenged rule from the perspective of an employee who wants to engage in protected concerted activity but is afraid of violating a company policy and being disciplined or terminated.

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 rule is presumptively unlawful, even if a contrary, noncoercive interpretation of the rule is also reasonable.

The new standard does, however, allow employers to rebut this presumption by demonstrating that a rule is necessary to advance legitimate interests that cannot be achieved by a narrower directive. This means that employers will have to be very specific when drafting and maintaining workplace rules that arguably infringe on employees’ NLRA rights, and they must be able to point to a substantial and legitimate business interest that the restriction serves and which otherwise cannot be attained with a narrower rule.

• Employers can maintain workplace policies as long as they are narrowly tailored to “advance legitimate and substantial business interests” and minimize the risks of interfering with workers’ rights to act collectively. Policies will be ruled unlawful if an employee interprets them as reasonably restricting his or her rights — even if the rule could also be interpreted as not restricting workers’ rights and regardless of the employer’s intent.

The Board also rejected Boeing ’s previously described categorical framework and instead will analyze employer rules on a case-by-case basis.

Because of the change in the Board’s workplace rules test, employers may see more challenges to workplace rules and policies as well as any disciplinary actions based on those rules.

Employers should review their existing policies and employer handbook rules (especially those related to social media, discipline, confidentiality, conflicts of interest and others that tend to restrict employee conduct) in consultation with their legal counsel and make revisions as necessary to comply with the new standard.

In general, employers should consider the following when reviewing work rules and handbook policies to comply with the Board’s standard:

• Avoid vague or ambiguous language and generic terms;3
• Avoid broad categories of prohibited or required conduct;
• Provide specific examples of the types of behavior the policies aim to prevent to provide context;
• State why the policy is in place (i.e., the specific business interests and/or legal obligations the policy promotes) to make clear that the policy is not intended to target section 7 rights;
• Avoid policies that may appear to workers to prohibit protected activities, such as talking about pay and working conditions, or to compel all employees to confine their concerns to management; and
• Use “savings clauses” throughout a document, when a policy might raise a red flag.

Although a handbook violation under the NLRA does not result in a fine, the Board has overturned discipline, terminations and representation elections because of impermissible or overbroad policy language, on their face or as applied. It also requires rescission of the rule, which can create a void in the employer’s policies.

A lawful rule that is applied to restrict protected section 7 activity is itself unlawful. For example, in AT&T Mobility, LLC,4 the Board held that a policy prohibiting employees from recording telephone or other conversations without advance approval from the employer’s legal department was a lawful Category 1(b) rule under the Boeing test. However, the employer unlawfully relied on the policy in threatening to discipline an employee for recording a termination meeting he attended in his capacity as union steward.

We anticipate work rules to fall under more significant Board scrutiny following the overruling of Boeing and adoption of Stericycle. The Board has already begun severing allegations of unlawful work rules and remanding them for reconsideration under the Stericycle framework.5

• Employers should consult legal counsel with any questions about their handbook and policy language. Regular handbook review is recommended given that the Board’s position on unlawful handbook language is evolving.

1. LA Specialty Produce Co., 368 N.L.R.B. No. 93 (2019) (designating subdivisions of Boeing Category 1 as Boeing Categories 1(a) and 1(b)))