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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.

Medical Marijuana Use Protected from Adverse Action

April 2, 2025
A recent court decision in Pennsylvania offers clarification that employers cannot take adverse action for marijuana use against individuals who possess medical marijuana cards, at least under Pennsylvania’s Medical Marijuana Act. In this decision, an individual received a conditional job offer for a non-safety sensitive position, contingent on a drug test. The individual disclosed his state-certified use of medical marijuana to treat anxiety, depression and ADHD, assuring the employer that it wouldn’t affect job performance or safety. After a positive test for marijuana, the employer rescinded the offer, citing safety concerns. The individual sued the employer under the Pennsylvania Medical Marijuana Act (“MMA”) and disability discrimination under the Pennsylvania Human Relations Act (“PHRA”). The Court allowed the individual’s claim under the MMA to proceed, potentially creating substantial precedent for tolerance of individual medical marijuana use in non-safety sensitive positions. The Court specifically noted that MMA protects individuals not just from discrimination based on card holder status, but also for adverse actions based solely on lawful medical marijuana use. The Court otherwise dismissed the individual’s claims under the PHRA because the PHRA does not require employers to accommodate medical marijuana use, even if it is prescribed for a legitimate medical condition. While a Pennsylvania decision, this decision potentially has rippling implications that will affect Massachusetts employers and employers in states where medical marijuana use is allowed under state law, which is allowed in some manner in 44 states. Employer Takeaways 1. Understand State-Specific Protections : Laws regarding medical marijuana use differ widely across states. In some areas, cardholder status is protected, while in others, it is not. Employers operating in multiple states must ensure their hiring and accommodation practices comply with the relevant laws in each state. 2. Base Safety Concerns on Job-Specific Evidence : General or speculative safety concerns are insufficient, particularly in states with strict employee protections. Safety risks cited should be specific, evidence-based, and directly related to the essential functions of the job. 3. Review Drug Testing and Accommodation Policies: Update your policies to reflect current state laws and clarify how your organization manages disclosures of medical marijuana use, especially during the hiring process . If you have any queries regarding drug testing or other workplace accommodations following this ruling, it is prudent to contact legal counsel. 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 Awarded Finalist of 2025 Best of The Valley Readers’ Poll

March 28, 2025
The Royal Law Firm was a Finalist for Best Law Firm in The Best of The Valley Readers' Poll for 2025, as published by the Valley Advocate! Thank you to everyone who voted for us, and to those of you who trust us to help you in times of need. Click here to check out all of the category winners and finalists.
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