NLRB revises criteria to decide lawfulness of employer policies

On August 2, 2023, the Biden National Labor Relations Board (NLRB) continued to roll back the precedents it set under the Trump Administration. In this case, the Board reversed a 2017 decision that addressed how to analyze whether employer policies infringe upon employees’ rights to engage in concerted activities for mutual aid or protection and held that some policies are categorically lawful.

Under the new policy, the Board will use a case-specific approach and examine policies from the perspective of an employee who is economically dependent on the employer to determine if an employee could reasonably interpret the rule to restrict or prohibit rights protected under the National Labor Relations Act (NLRA). If so, the rule will be found unlawful unless the employer can prove that it has a legitimate and substantial business interest that can't be accomplished with a more narrowly tailored rule.