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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.

Challenges to DEI Restrictions Cause More Confusion

April 4, 2025
Last week, we wrote about the guidance issued by the EEOC regarding actions or policies that could be considered illegal DEI. (click here to read our post!) There has been some confusion regarding the guidance issued by the EEOC in its application. These additional factors feed into the uncertainty surrounding DEI practices: A federal court issued a limited temporary injunction against the U.S. Department of Labor (“DOL”) attempting to enforce “illegal DEI” measures. A partially federally funded nonprofit focused on supporting women in skilled trades immediately felt the effect of EO 14151 and EO 14173 when a partner canceled its subcontract, citing being in violation of both executive orders. “The Court concludes that the [executive order] is likely a coercive threat…selectively targeting speech regarding DEI, DEIA, and equity based on a belief that such programs are ‘immoral,’ i.e., disfavored by the government.”​ This injunction is not widespread, it applies to the nonprofit challenging the order and any grantee through which it holds a subcontract. However, the court additionally barred the DOL from enforcing the requirement that grantees certify they don’t operate any DEI-promoting programs—even outside of their grants. This applies nationwide to all DOL grantees.  Massachusetts attorneys have told Massachusetts Lawyers Weekly they are less concerned about the guidance issued on two counts: 1) the EEOC and the executive orders are unable to override established law and precedent. While the EEOC could seek investigation, which would bring undue costs to employers, it would be unlikely to lead to further legal action. 2) The guidance is much the same as it was before, but with more of a focus on practices during an employee’s term of employment. The EEOC has historically focused on hiring and firing practices. The EEOC’s acting chair publicly requested information from 20 law firms regarding their DEI-related employment practices going back to 2015. Andrea Lucas, EEOC head, stated in her letters to the 20 firms that the investigation is based on public statements the firms previously made regarding their diverse hiring practices. Take Aways Seek review of handbooks and company policies to ensure compliance before an investigation could take place. If you accept federal funding, do not expand any DEI programs until the guidelines are solidly established between the courts and the administration. Try to avoid a knee jerk reaction of immediately cutting all DEI programs as they may remain legal. Please reach out to The Royal Law Firm to help you navigate this ever-changing terrain. “An ounce of prevention is worth a pound of cure.” – Benjamin Franklin 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 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. 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. 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.
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