National Labor Relations Board Update

August 18, 2023

Since 2017, employers have been subject to greater leeway with crafting their workplace policies and rules. However, that has changed due to a recent decision by the National Labor Relations Board (NLRB) that readopts and modifies a prior standard that will be used when analyzing workplace rules and policies that are challenged by employees as violating Section 8(a)(1) of the National Labor Relations Act (NLRA).


In an August 2, 2023 decision, the NLRB adopted a new legal standard for assessing employer rules that are challenged under Section 8(a)(1) of the National Labor Relations Act. See Stericycle, Inc. and Teamsters Local 628, 372 NLRB No. 113 (2023 WL 4947792).


This new legal standard for evaluating employer work rules is pro-employee and will raise the level of scrutiny that employer rules will face if challenged. This decision essentially represents a reinstatement of a modified version of the previous Lutheran-Heritage standard of 2004.


Employees have a right to engage in “protected concerted activity” when those employees are taking action relating to the “terms and conditions of employment for their mutual aid or protection.” This includes things such as discussions between co-workers about compensation, workplace safety, union matters, and other topics. Therefore, it is crucial that employers practice caution when creating their handbooks.


Rules set forth by employers will be found to be presumptively invalid if they have “a reasonable tendency to chill employees” from exercising their rights. While an employer may still be able to rebut that presumption by showing that the rule addresses a legitimate business interest that cannot be addressed in a more narrowly tailored manner, the NLRB will be placing a heightened scrutiny on that claim.


The NLRB will look at challenged rules from the perspective of a reasonable employee who is economically dependent on the employer and therefore may be more likely to interpret rules to prohibit protected activities.


This may be particularly relevant when it comes to policies regarding the use of social media, discipline, confidentiality, conflicts of interest, and any other provisions that tend to restrict conduct. Employers should scrutinize all workplace policies, procedures, and rules through this new lens of whether such rules may be interpreted as prohibiting protected activities.


If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

The Royal Law Firm Attorneys Receive a Partial Dismissal in USDC MA Case.

By The Royal Law Firm • August 15, 2025
Royal attorneys successfully obtained a Partial Dismissal on a USDC MA case. The Plaintiff alleged discrimination on the basis of sex, pregnancy, parental leave, and retaliation. The court agreed with our arguments and dismissed the 93A claims.

Client Update: Supreme Court Ends Nationwide Injunctions—What Employers Need to Know

July 25, 2025
On June 27, 2025, the U.S. Supreme Court ruled in Trump v. CASA that federal district courts cannot block executive orders for the entire country. The Court held that such broad injunctions exceed the authority Congress granted under the Judiciary Act of 1789. Courts may now only stop enforcement for the parties in the case—not for everyone else. What Happened in the Case President Trump issued Executive Order 14160 in early 2025. It denies birthright citizenship to children born in the U.S. if neither parent is a citizen or lawful permanent resident. Multiple lawsuits followed. Three federal courts blocked the order nationwide. The Supreme Court disagreed. It sent the case back and told the lower courts to revise the injunctions to cover only the named plaintiffs. The Court did not decide whether the order itself violates the Constitution. It ruled only on how far a court’s injunction can reach. Why It Matters to Employers The ruling affects how quickly and widely federal courts can stop controversial policies, especially during fast-changing political cycles. Employers have often relied on national injunctions to pause new mandates on wages, workplace safety, pay transparency, and non-compete agreements. This decision limits that option. The Court said nothing about injunctions under the Administrative Procedure Act, which governs agency rules. But the opinion raises doubts about whether even those can continue on a nationwide scale. Justice Kavanaugh suggested they might, but the Court left that question for another day. What This Means for You No nationwide protection unless you sue If your business is not part of the case, you likely cannot rely on someone else’s win. You must litigate directly to get relief. Rules may take effect in one state and not another A federal court in Texas may block a rule, while a court in New York upholds it. National companies may face conflicting rules and inconsistent enforcement. Trade groups cannot shield you Even if your industry association wins an injunction, it may apply only to their members or to the parties named in the lawsuit. Older rulings may now shrink Past national injunctions—on vaccine mandates, non-compete bans, overtime rules, or joint-employer standards—could be challenged or narrowed based on this ruling. More class actions are likely Some plaintiffs may now push for class certification to restore broader relief. Employers could face more complex litigation as a result. Next Steps for Employers Identify any current or past rules your business has relied on that are being blocked nationwide. Confirm whether you were covered by name or just assumed you were protected. Reassess your risk exposure for pending federal actions under OSHA, the EEOC, the DOL, or the NLRB. Monitor APA-based injunctions to see whether courts continue to grant broad relief under that statute. Consider joining strategic litigation early if new executive orders or agency rules would harm your operations. You cannot assume another company’s lawsuit will protect you. The Court narrowed that path. To block a federal mandate, you may now need to act alone—or join the fight directly. Michael P. Lewis is an attorney at The Royal Law Firm with experience advising clients through the litigation process. Michael helps employers resolve workplace challenges with focus, precision, and judgment. He counsels and defends businesses across Massachusetts and Connecticut, handling matters involving discrimination, harassment, retaliation, wage and hour claims, restrictive covenants, and breach of contract. His practice includes litigation in state and federal courts and before administrative agencies. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.