The National Labor Relations Board (NLRB) has been hard at work in recent months. One of its biggest actions occurred in August when it issued its decision in the long-awaited Stericycle, Inc. case. This decision has completely revamped how the NLRB will evaluate workplace rules to determine if they violate employee rights.
The new standard is remarkably employee-friendly and may indirectly make it easier for workers to hold companies accountable for retaliation. To understand the impact of the NLRB’s Stericycle decision, knowing your rights in the workplace is important.
Your Protected Rights as an Employee
One of the earliest laws protecting employee rights is the National Labor Relations Act (NLRA). The Act was first instituted in 1935 and guarantees workers the right to organize and otherwise seek to improve their working conditions and pay. The law accomplishes this by defining protected activities, including but not limited to:
- Discussing your wages and benefits with your colleagues
- Talking about working conditions with others, including making complaints in public (which now includes on social media)
- Collaborating with your coworkers to improve working conditions, whether or not you have a union
- Making whistleblower reports to government agencies about unlawful workplace rules
These activities are just as important today as they were nearly 90 years ago. They allow you to understand what’s going on in your workplace, identify inequities, and take action if you face unfair or unjust treatment.
The NLRA makes it clear employers cannot take adverse employment action against workers who engage in these protected activities. Adverse actions include:
- Cutting hours
- Changing job duties for the worse
- Changing working conditions for the worse
- Demotion
- Termination
If a company fires, demotes, or otherwise takes action against an employee for engaging in a protected activity, it violates their rights and commits retaliation. If the NLRB determines an employer has retaliated against workers, it has the right to order the company to reinstate the worker and provide back pay.
Understanding the NLRB’s New Standards
The NLRB is an independent federal agency with several responsibilities. While most associate the agency with unions, it also acts as a watchdog to prevent and remedy unfair labor practices across the board. One of its primary roles is to investigate claims made by workers to determine if employers are violating the NLRA through their actions or rules.
The Stericycle decision updates the agency’s rule evaluation standard. Previously, it followed the standard set in 2017 in the case Boeing, Inc. Under that standard, the NLRB used a “balancing test” to determine if a given rule was lawful or violated employees’ rights. The test involved considering the impact on employees’ rights compared to the business’s legitimate business justifications. As a result, the Board could find that a business’s financial interests outweighed its employees’ legal rights.
Employee advocates heavily disputed this standard, but it took until this past August for the Board to reevaluate things. (It is worth noting that the membership of the Board changed substantially in the intervening years.) In its Stericycle decision, the NLRB stated that the Boeing standard let employers institute overly broad rules that could “chill” workers’ exercise of their rights, regardless of enforcement. It also noted that Boeing was flawed because it did not require companies to consider whether rules unnecessarily burdened their employees’ rights or promoted their legitimate business interests.
In turn, the Stericycle standard addresses both concerns. It removes the balancing test entirely and instructs the Board to review rules “from the perspective of an employee who is subject to the rule and economically dependent on the employer, and who also contemplates engaging in protected concerted activity.” The decision states that this view is taken because employees are significantly more vulnerable than employers, so any less favorable approach would naturally lead to the restriction of their rights.
How the NLRB Stericycle Decision Affects You
If you think this sounds like a lot of complicated back-and-forth about little details, you’re not wrong. However, those little details have an outsized effect on workers. The Stericycle decision matters because the NLRB is the only agency that handles claims regarding your NRLA rights.
That’s right. If you are fired for talking about your wages or complaining about your job on Facebook, you cannot take your employer to court like you would for another retaliation claim. Instead, you need to file an NLRB complaint. The Board acts as a quasi-judicial body, and its rulings are difficult to appeal.
The Stericycle decision matters because it prevents the Board from valuing your employer’s bottom line over your rights. If your employer argues it fired you for violating a rule, the NLRB will consider whether that rule could reasonably be interpreted to violate your rights. If so, and if your employer cannot prove otherwise, it should rule in your favor.
It’s important to note that an NLRB claim is different from a lawsuit. However, you will still benefit from working with an experienced attorney to support your claim.
Your Options for Fighting Back Against Unfair Labor Conditions
If you have suffered retaliation for exercising your right to perform protected activities, you should talk to the experts at the Law Offices of Todd M. Friedman, P.C. We are dedicated to fighting for workers like you who have experienced workplace retaliation. Get in touch with our expert employment lawyers to discuss your situation. When a company is willing to violate your rights in one way, other problems are often involved. We can help you determine whether or not your rights were violated and whether the NLRA applies. If you’ve suffered retaliation for filing a whistleblower claim or other protected speech, we can help you fight back. Schedule your consultation today with our Los Angeles retaliation attorneys to learn more.
