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NLRB's Stericycle: New Standard; Heightened Scrutiny of Union and Non-Union Employer Policies; Retroactive Application

Key Considerations and Best Practices for Creating or Revising Workplace Policies for Compliance

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Wednesday, October 18, 2023

Recorded event now available

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This CLE webinar will provide an overview of the National Labor Relations Board's (NLRB) impactful Stericycle decision that overturns the more employer-friendly Boeing standard and establishes a new two-step case-by-case approach that the Board will use to examine facially neutral workplace policies to see if their implementation constitutes an unfair labor practice (ULP). The panel will discuss the new standard and its effect on union and non-union employers. The panel will also describe best practices for compliance.


On Aug. 2, 2023, the NLRB issued its long-awaited decision in Stericycle Inc., 372 NLRB No. 113 (2023) whereby it adopted a new two-step, case-by-case process for determining whether facially neutral employer policies interfere with employees' Section 7 rights. The decision overturns the more employer-friendly Boeing standard, impacting union and non-union employers.

In the first step, general counsel (GC) has the burden of establishing that a policy has a reasonable tendency to chill employees from exercising their Section 7 rights. In analyzing this question, the Board will now examine the language of the policy from the perspective of an employee who is economically dependent on the employer and who contemplates engaging in protected concerted activity. This is a significant change from the "reasonable employee" standard previously used. If GC meets their burden, the policy is presumptively unlawful.

The employer then has a chance to rebut the presumption by proving that the policy advances a legitimate and substantial business interest and that the employer is unable to advance that legitimate interest with a more narrowly tailored rule.

The new standard will be applied retroactively so that counsel and their clients should immediately review workplace policies and handbooks for compliance to avoid a ULP.

Listen as our expert panel addresses the Stericyle decision and its impact on employers. The panel will discuss the two-step process by which the Board will scrutinize workplace policies and explain the new employee perspective from which the Board will review policy language. The panel will also describe best practices for compliance and risk mitigation.



  1. Overview of Stericycle history and decision
  2. The new Stericycle standard
    1. Case-by-case approach
    2. Two-step process
      1. GC's burden
      2. Employer rebuttal
    3. New employee perspective from which language will be reviewed
  3. Retroactive application and employer impact
  4. Best practices for compliance


The panel will review these and other important considerations:

  • How does the Stericycle test differ from that used in Boeing?
  • What is the new employee perspective the Board will use when examining policy language to determine whether it is unlawful?
  • What is GC's burden to demonstrate a policy is presumptively unlawful and how can an employer rebut this presumption?
  • How will retroactive application of the new standard affect employers?
  • What are the next steps that counsel should be advising their employer clients to take in light of Stericycle?


Franklin, Corey
Corey Franklin


Mr.  Franklin’s legal practice is focused on the representation of management in labor relations issues and...  |  Read More

Jeter, Leigh
S. Leigh Jeter

Senior Counsel
Michael Best & Friedrich

Ms. Jeter has represented private and public sector employers in labor and employment matters for nearly 25 years. Her...  |  Read More

Pavlick, Michael
Michael A. Pavlick

K&L Gates

Mr. Pavlick concentrates his practice in labor and employment law, including representation of clients before the NLRB...  |  Read More

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