NLRB GC "Softens" Employer Work Rules Enforcement

By Richard Lehr - Lehr Middlebrooks Vreeland & Thompson, P.C.

March 13, 2026

Is there a federal agency other than the NLRB that flips back and forth regarding policy and enforcement based on who is President?  Ok, arguably the Federal Trade Commission; but in the workplace, there’s nothing close to the NLRB.  For example, during Trump I, the Board’s 2017 Boeing decision gave great deference to employer concerns regarding work rules and their interpretation.  Certain work rules were per se permitted, and, overall, work rules were interpreted according to the standard of considering the employer’s interests.  During the Biden administration, the Board in Stericycle ruled that a work rule is presumptively invalid if an employee could reasonably interpret the work rule as chilling employee rights.  In essence, this broad interpretation provided employers with little guidance and employees with great latitude. 

Although the NLRB under Trump II has not (yet) reconsidered the Stericycle restrictions, NLRB General Counsel Crystal Carey directed NLRB Regional Offices to focus on cases where employer rules clearly and actually restrict employee rights, rather than taking a Stericycle approach of invalidating rules based on how they might impact employee rights.  An example of an employer rule that would be seen as clearly and actually restricting employee rights and which would be an obvious target for an NLRB enforcement action would be employer policies prohibiting employees from discussing pay.  Employees’ ability to discuss and compare pay is considered a core employee right. An example of an employer policy not likely to be seen as problematic by the current NLRB is strong “employment at will” statement in the employee handbook.  More changes will occur under GC Carey and the NLRB, now that it has a quorum for deciding cases. 

www.lehrmiddlebrooks.com