NLRB Stericycle Decision Overhauls Standard for Employer Workplace Rules and Handbook Policies

What Changed

On August 2, 2023, the National Labor Relations Board (NLRB) issued its decision in Stericycle, Inc. and Teamsters Local 628 (372 NLRB No. 113), fundamentally changing how employer workplace rules and handbook policies are evaluated under the National Labor Relations Act (NLRA).

The Stericycle decision overturns two Trump-era precedents — Boeing Co. (2017) and LA Specialty Produce Co. (2019) — which had established a balancing test that was generally more permissive of facially neutral employer policies. Under the prior framework, employer rules were sorted into categories, and many common workplace policies were presumed lawful.

Under the new Stericycle standard, the NLRB General Counsel need only show that a workplace rule has a "reasonable tendency to chill employees from exercising their rights" under Section 7 of the NLRA. If the General Counsel meets this burden, the rule is presumptively unlawful. The employer can rebut this presumption only by proving that the rule advances a legitimate and substantial business interest and that the employer cannot advance that interest with a more narrowly tailored rule.

The decision applies retroactively to all pending cases.

Who Is Affected

All private-sector employers in the United States, whether unionized or not. Section 7 rights — including the right to discuss wages and working conditions, organize, and engage in concerted activity — apply to all private-sector employees. This decision affects any employer that maintains a written employee handbook, workplace rules, or employment policies.

This is not limited to union environments. The NLRB has jurisdiction over virtually all private employers, and Section 7 rights exist independently of union membership.

Where It Applies

Nationwide. The NLRB has jurisdiction over private-sector employers across all 50 states, the District of Columbia, and U.S. territories. The Stericycle standard applies uniformly.

When It Takes Effect

The decision was issued August 2, 2023, and is effective immediately. It also applies retroactively to all pending cases before the NLRB. Employers should review their policies now, as any existing rule that would have been permissible under the Boeing framework may now be challenged and found unlawful under Stericycle.

Why It Matters

This decision significantly raises the bar for employer workplace rules. Under the prior Boeing standard, many common handbook provisions — including confidentiality policies, social media rules, no-gossip clauses, and codes of conduct — were generally considered lawful as long as they served a legitimate business purpose. Under Stericycle, these same policies may be found unlawful if a reasonable employee could interpret them as restricting Section 7 activity, unless the employer can demonstrate that the rule is the most narrowly tailored means of achieving a substantial business interest.

Policies that are commonly at risk include:

• Confidentiality and non-disclosure policies that could be read to prohibit discussing wages or working conditions

• Social media policies that restrict what employees can post about their employer

• Anti-gossip or professionalism rules that could discourage discussions about workplace issues

• No-solicitation and no-distribution policies that are overly broad

• Conflict of interest policies that could be interpreted to restrict outside organizing activity

The handbook policy vendor SixFifty has already updated its applicable templates and recommends adding the following disclaimer to existing handbooks: "Nothing in this policy is meant to infringe on employees' rights to engage in concerted activity under Section 7 of the NLRA."

The Humareso Take

This is one of the most consequential labor law decisions of 2023, and it affects every private employer — not just those with unions. If your employee handbook hasn't been reviewed through the lens of Section 7 rights, it's overdue. The Stericycle standard essentially says that if a reasonable employee could read your policy and think twice about discussing wages, working conditions, or workplace concerns with coworkers, the policy is presumptively illegal. That's a much lower bar than what we had under Boeing. We strongly recommend a full handbook audit with specific attention to confidentiality, social media, and professionalism policies. Adding the Section 7 savings clause that SixFifty recommends is a smart first step, but it's not a substitute for reviewing the substance of your rules.

Recommended Action Steps

1. Conduct a comprehensive handbook audit reviewing all workplace rules through the Stericycle standard — particularly confidentiality, social media, no-gossip, solicitation, and code of conduct policies.

2. Add a Section 7 savings clause to your handbook: "Nothing in this policy is meant to infringe on employees' rights to engage in concerted activity under Section 7 of the NLRA."

3. Narrow overly broad policies to ensure they target specific, legitimate business interests without unnecessarily restricting employee communication about wages and working conditions.

4. Document the business justification for each workplace rule, including why the rule is necessary and why a more narrowly tailored alternative would be insufficient.

5. Train managers and supervisors on Section 7 rights and the types of employee discussions that are protected — including conversations about pay, benefits, scheduling, and working conditions.

6. Contact your Humareso representative for a Stericycle-focused handbook review tailored to your organization's policies.