NLRB swings the pendulum back on employee handbooks

Yesterday, the National Labor Relations Board (NLRB) adopted a new standard for assessing the lawfulness of work rules (press release | decision in Stericycle, Inc.). If you're stuck in the past (ya know, like two days ago), here is an overview of the overruled categorical Boeing standard (maybe bookmark it in case a Republican gets elected president). 

So, what is the "new" standard, which actually "builds on" the "old-old" (pre-Boeing) standard?

Under the new standard adopted in Stericycle, the General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If the General Counsel does so, then the rule is presumptively unlawful. However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule. If the employer proves its defense, then the work rule will be found lawful to maintain.

If you're a fan of Con Law, this sounds a lot like "strict scrutiny." Employers may wish to review their employee handbooks with the new standard in mind to avoid NLRA challenges.