Previously, the Board applied a two-part test articulated in Lutheran Heritage Village-Livonia 1 (the Lutheran Heritage test) to determine whether a workplace policy or rule unlawfully discouraged employees from engaging in protected concerted activities. Under the Lutheran Heritage test, facially neutral policies could be found unlawful based on the possibility that employees would “reasonably construe” the policies as prohibiting activity protected under the NLRA. The Board could not consider an employer’s justification for a facially neutral rule, or the extent to which the rule might burden section 7 activity.

In late 2017, the Board reversed course and overruled the “reasonably construe” standard of the Lutheran Heritage test in favor of the Boeing standard, which considers both the impact of rules on employees’ protected rights and the employer’s justification for the rules.2

In 2019, the NLRB Office of the General Counsel released an August 2018 advice memorandum that found handbook policies stating that employees should refrain from posting “derogatory information about the Company” on social media sites unlawfully overbroad.3

The memo further stated that while employers may not block their employees from criticizing them on social media, employers may prohibit employees from accessing those sites with company devices. Additionally, companies may require employees to disclose their relationship with the company when they link to the company website from an external website, including their own social media.

The Boeing standard remained in effect until August 2, 2023, when the NLRB overruled that decision and adopted a new standard for analyzing employee handbook rules and policies.4 As discussed in more detail below, the Board thought Boeing put too much emphasis on the employer’s justifications for workplace rules and not enough on employees’ protected rights and crafted its new test accordingly. The Board’s new Stericycle standard is essentially a revised version of the Lutheran Heritage standard. Under Stericycle, a facially neutral employer rule will be found presumptively unlawful if it has “a reasonable tendency to chill employees” from exercising their rights under the NLRA. This will generally make it harder for employers to place restrictions on employees in the workplace without running afoul of the NLRA.

Developments under the Trump Administration

• On February 14, 2025, Acting General Counsel Cowan rescinded numerous General Counsel memoranda, including those with guidance on employee handbook rules.5 Specifically, Cowan rescinded GC 21-02 and 21-04, which instructed Regions to decline applying Boeing in assessing contested confidentiality rules, non-disparagement rules, social media rules, media communication rules, civility rules, respectful and professional manner rules, offensive language rules and no camera rules. Thus, under the Trump administration, once the Board has quorum, employers can anticipate the Board to shift its approach in analyzing employee handbook and company rules.

1. See Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004)