The National Labor Relations Board is inviting comments on whether it should adopt a new legal standard to determine whether certain employer work rules violate the National Labor Relations Act.

Section 8(a)(1) of the act prohibits employers from interfering with employees’ rights to form a union, engage in collective bargaining “and the right to join together in other ways for their mutual aid and protection.”

The NLRB, with two members of the five-member board dissenting, is asking whether the Trump-era standard adopted in cases brought before it in 2017 and 2019 should be reexamined as to whether they are too lenient on employers and whether they shift the burden of proof too heavily toward workers, as the board looks at a current case involving waste disposal company Stericycle.

“Given the ubiquity of employer work rules and the importance of ensuring that such rules do not interfere with the exercise of employees’ rights under Section 7 of the Act any more than is justified by legitimate employer interests, the board believes that it is appropriate, with public participation, to evaluate the standard adopted in Boeing, revised in LA Specialty Produce, and applied in subsequent cases,” the NLRB worte.

The 2017 decision involving the Boeing Co. superseded a 2004 decision that said that employers violated the National Labor Relations Act only when “the rules would be reasonably construed’ by an employee to prohibit the exercise of NLRA rights.” The NLRB refined the Boeing standard in the LA Specialty Produce claim.

Briefs not exceeding 20 pages in length may be filed with the board in Washington, D.C., on or before March 7. Parties (but not amici) may file responsive briefs on or before March 22 that are no more than 30 pages. No other responsive briefs will be accepted.