In one busy August, the NLRB issued two critical decisions, Stericycle and Cemex, which, taken together constitute one of the most significant changes to labor law since Congress passed the Taft-Hartley Amendments to the National Labor Relations Act in 1947. These two decisions are particularly crucial for nonunion employers to understand because, as the National Labor Relations Board (NLRB) expands its regulatory reach and makes it easier for unions to organize, nonunion employers will increasingly feel the consequences of this new precedent. This article will provide employers with the essential aspects of these two revolutionary decisions and suggest strategies to help manage risks associated with this new NLRB precedent.

On Aug. 2, the NLRB issued its decision in Stericycle, adopting a new legal standard for evaluating work rules challenged as unlawful under the National Labor Relations Act (NLRA). In Stericycle, the NLRB explained that the current standard purportedly allowed employers to adopt work rules that chilled employees’ exercise of Section 7 rights. Section 7 rights generally include employees rights to act together to advocate for improvements in the workplace and can include rights such as wearing union apparel at work to advocating for a social cause that has some connection to the workplace, such as the “fight for $15.” Under the new standard, the NLRB considers a rule unlawful if it “could” (rather than “would”) be interpreted to limit employee rights—dramatically increasing the likelihood a challenged rule will be deemed unlawful.

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