Quick Hits
- The NLRB general counsel is pushing the Board to reverse Biden-era Board precedents in a recent NLRB case brief.
- The brief argued for the reversal of the 2023 Stericycle standard, which established a presumption that workplace rules were unlawful.
- The brief urged a return to a prior framework dating back to the first Trump administration that focuses on a “reasonable employee” and balancing elements.
- The common thread in the proposals in the brief is a move away from standards that presumed employer conduct was unlawful toward standards that “genuinely” balance employee and employer interests.
The general counsel (GC) brief—filed on September 11, 2026, in Atlassian Corp., Case 16-CA-324971—asks the Board to overrule Biden-era precedents that have made employer compliance with the law in these areas increasingly difficult (and often frustrating). The new brief comes in a case concerning the enforcement of an employer’s social media rules for workers and is notable for laying out detailed proposed replacement standards that offer a window into the possible future of labor law.
A New Standard for Workplace Rules
What the law currently requires. Under the 2023 Stericycle standard, the GC need only show that a workplace rule has a “reasonable tendency to chill employees from exercising their” rights under Section 7 of the National Labor Relations Act (NLRA). This preliminary showing is quite easy to establish. At that point, the rule is considered presumptively unlawful, and the employer must prove both that the rule advances a legitimate and substantial business interest and that no more narrowly tailored rule could serve the same interest. The employer’s intent is irrelevant.
Why the GC says it should go. The GC argues that the existing standard “presumed unlawful interference whenever employer policies potentially interacted with even the most excessively broad interpretations of Section 7.” The GC further pointed to former NLRB member Marvin Kaplan’s observation in his dissent in Stericycle that the standard’s “reasonable employee” is essentially “predisposed to read into their employer’s work-rules references to Section 7 activity where none exists.” The result, the GC contends, is a “dilemma” that forces employers to “either comply with various legal and regulatory requirements or risk having every workplace policy challenged as potentially violative of the” NLRA. The employer’s rebuttal opportunity is “largely illusory,” the GC argued, because, again quoting former member Kaplan from a different case, “no matter how narrowly tailored the rule, there could always be a rule that is ever so slightly more narrowly tailored.”
What the GC proposes instead. The GC urges a return to a prior framework (dating to the first Trump administration), which uses reasonable-employee and balancing elements. But she would not use that prior framework’s three-category system, where certain rules were considered always lawful, while others received individual scrutiny, and others still were always unlawful. The GC says this category system was well-intentioned but resulted in “confusion among the labor-management bar.” The proposed replacement is a two-step test:
- Step 1: The GC must prove that a facially neutral rule would, in context, be interpreted by an “objectively reasonable employee” to potentially interfere with Section 7 rights. That employee is “aware of his legal rights but also interprets work rules as they apply to the everydayness of his job,” and critically, does not “view every employer policy through the prism of the NLRA.”
- Step 2: If the GC meets that burden, the Board then genuinely balances the employer’s legitimate business justifications—including societal interests and regulatory requirements—against the extent to which the rule interferes with Section 7 rights. Unlikethe extant test, this balance “necessarily entail[s] the possibility that in a particular case, a challenged rule may be lawful to maintain even though it limits the exercise of Section 7 rights to some extent because the legitimate employer interests it advances outweigh that limitation.”
Key shifts. Under this proposed framework, rules must be read in context—not in isolation—considering the rule’s evident purpose, surrounding sections, examples given, industry or work setting, and savings clauses. A rule would not be found unlawful merely because it “could hypothetically be interpreted” to limit Section 7 activity or because the employer “failed to eliminate all ambiguities from the rule.” The employer’s rebuttal would be a genuine balancing test, not a near-impossible burden of proving no narrower rule exists.
Applied to the facts. The GC’s briefing applied this proposed standard to four workplace rules that were litigated in the Atlassian Corp. case, and found three to be lawful: (1) a rule directing employees to “frame opinions, not demands,” (2) a prohibition on “ad hominem attacks,” and (3) a rule against communications with a negative impact on partners, shareholders, or customers. The GC found only the confidentiality rule to be unlawful because an “objectively reasonable employee” would understand the definition of confidential information to include “nonpublic information relating to employees and compensation,” i.e., “wage discussions.”
Practical takeaway: Commonsense civility rules and anti-harassment policies should survive under the proposed standard (even if they could arguably cover talk about unions or concerted activity, and even if more narrowly tailored language could achieve a similar result). But confidentiality rules that sweep in employee compensation remain a problem even under a more employer-friendly framework. Beyond confidentiality, we are likely to see the GC continue to take issue with rules that could fairly be interpreted to prevent concerted activity. Context, purpose, illustrative examples, and savings clauses are the building blocks of a defensible rule.
Workplace Misconduct Standard Overturned
Notably, the GC’s brief in Atlassian Corp. portended the reversal of the Board’s 2023 standard from Lion Elastomers II for when an employee is unlawfully disciplined for misconduct that occurs during the exercise of Section 7 protected concerted activity. The brief urged the Board to move away from applying different “setting-specific” tests depending on where the misconduct took place, and to readopt a single burden-shifting framework, regardless of setting.
On September 23, 2026, the Board issued a supplemental decision in the Lion Elastomers case that vacated the decision in Lion Elastomers II, thereby restoring the prior General Motors standard and the familiar Wright Line framework used in mixed-motive discipline cases. However, that ruling expressly leaves open the possibility that the issue could be revisited in a future case, meaning there could be more to come on this issue.
What This Means for Employers
Overall, the GC’s proposed changes share a common thread: the GC is urging the Board to move from standards that presumed employer conduct was unlawful to standards that genuinely balance employee and employer interests. If the Board follows the GC’s lead, employers would benefit from a more contextual, commonsense approach and greater certainty.
But change has not arrived yet. The five-seat Board would have to issue a case adopting these standards before they become law. Notably, the Board is positioned to do just that now that it has obtained a 3-1 Republic majority.
Rapid action by the NLRB is not expected, but employers may want to position themselves for the expected shift to more employer-friendly standards. That means reviewing social media policies and other key workplace rules now—with an eye toward crafting rules that would survive under either the current standard or the more balanced framework the GC is advocating.
Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Traditional Labor Relations blog.
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