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.

Brandon Calton admitted to the United States District Court of Connecticut

June 10, 2025
Brandon Calton is now admitted to the United States District Court, Connecticut! The Royal Law Firm is passionate about expanding our reach so that we can better serve our clients and their needs. Brandon is admitted in Massachusetts, the United States District Court of Massachusetts, and the United States District Court of Connecticut.

Federal Court Vacates EEOC’s “Abortion Accommodation Mandate” in PWFA

By Heather Child • June 9, 2025
On May 21, 2025, the U.S. District Court for the Western District of Louisiana struck down a provision in the Equal Employment Opportunity Commission’s (EEOC) final rule under the Pregnant Workers Fairness Act (PWFA), ruling that the agency exceeded its authority by requiring employers to accommodate elective abortions that are not medically necessary. Background Information: In June 2022, the U.S. Supreme Court issued a decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and eliminated the constitutional right to abortion. Congress passed the Pregnant Workers Fairness Act in December 2022, and it became effective in June 2023. The law requires employers with 15 or more employees to provide reasonable accommodation to qualified applicants or employees who have physical or mental conditions related to pregnancy, childbirth, or related medical conditions, unless doing so would cause significant difficulty or expense for the employer. In April 2024, The EEOC issued its final interpretation of the PWFA including abortion in the definition of “pregnancy, childbirth, or other related medical conditions” thereby requiring employers to provide accommodations related to abortion. In May 2024, the states of Mississippi and Louisiana sued the EEOC, arguing that the interpretation conflicted with the U.S. Supreme Court’s Dobbs decision and their respective state laws on abortion. In June 2024, Judge Joseph found that the EEOC exceeded its authority and issued a preliminary injunction postponing the effective date of the interpretation to provide accommodation for elective abortions until final judgment was entered in this matter. The final judgment was entered on May 21, 2025, that remanded the matter to the EEOC to revise the final rule and all related implementing regulations and guidances. Employer Takeaways: While employers are no longer (as of now) REQUIRED to provide accommodation for elective abortions, the remainder of the PWFA remains in full effect The decision to have or not have an abortion remains protected under Title VII The PWFA does not supersede state or local laws providing greater protection for pregnant workers. It is important to stay up to date on state regulations to ensure employers are complying with state laws. While it is still unclear how this ruling will impact employers nationwide, it is still important to continue to stay up to date on ever-changing legislation.  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.