Stericycle decision forces evaluation of policies, practices 

By Jessi Thaller-Moran and Erin Barker 

The National Labor Relations Board, the federal agency charged with protecting employee rights under the National Labor Relations Act, recently issued a decision that has employers in the Carolinas and across the country taking a closer look at their workplace policies and practices.  

In a case involving Stericycle Inc., a national medical waste compliance company with operations in North Carolina and South Carolina, the NLRB toughened standards for evaluating whether an employer’s policies would discourage or “chill” an employee’s ability to engage in activity protected by Section 7 of the NLRA.  

The Stericycle decision changes course from prior standards that allowed an employer’s business interests to balance out potential restrictions on employees’ ability to engage in Section 7-protected activity.  After Stericycle, all workplace rules and policies are judged through the lens of employees who might err on the side of caution in interpreting restricted behavior because of their economic dependence on their employer and might thus be discouraged from advocating for better working conditions, disagreeing with management, or discussing wages and benefits with their co-workers. To that end, all workplace policies should be narrowly tailored to specific business interests and avoid unnecessarily discouraging employees from engaging in protected activity.  

Unlike prior NLRB authority, there are no categories or types of policies that are presumptively allowed. Instead, if the NLRB general counsel proves that a rule or policy has a “reasonable tendency” to restrict an employee from expressing concerns about wages or working conditions, the rule or policy is presumptively unlawful, even if the employer did not intend to restrict employees’ Section 7 rights. The employer might only salvage the policy and avoid liability if the employer can show that it was narrowly tailored to protect a legitimate and substantial business interest.    

The Stericycle decision affects a wide range of workplace policies and practices, and North Carolina and South Carolina employers should review handbooks and workplace policies to make sure that they meet current legal standards.  Employers should specifically work with counsel to revisit policies that touch on employees’ communications and interactions with one another, such as: 

• Policies restricting the use of social media, email and other communication resources. 
• Workplace monitoring policies and practices, which can include the use of security cameras.
• Codes of conduct. 
• Workplace confidentiality requirements.
• Nondisparagement and other policies restricting criticism or negative comments toward the company or its management.
• Workplace “no soliciting” policies that might discourage employees from discussing or distributing union-related materials.

The landmark Stericycle ruling highlights a renewed emphasis by the NLRB on safeguarding employees’ rights under the NLRA. With this shift, employers in the Carolinas and around the country should evaluate and refine their policies to remain legally compliant.  

Jessi Thaller-Moran is a partner at Brooks Pierce, where she counsels employers on legal compliance in the workplace. Erin Barker is an associate at Brooks Pierce; she advises clients on various employment, ERISA and benefits-related matters.