Labor & Employment Law Update

Most employers assume a handbook policy is lawful if it serves a legitimate business purpose. However, that assumption can create risk under the current National Labor Relations Board standard. Even in nonunion workplaces, policies that appear reasonable may draw scrutiny if employees could interpret them as restricting rights protected by the National Labor Relations Act.

For employers this means an outdated handbook can become evidence in an unfair labor practice investigation. That’s why every employer should pay attention to the case that set the current standard: Stericycle.

Employers may have more flexibility to enforce neutral dress code and uniform policies, even when those policies affect employees' display of union insignia. On September 2, 2026, in a decision involving Starbucks’ New York Reserve Roastery, the Second Circuit rejected the NLRB’s stringent standard to workplace rules that restricts employees’ ability to display union insignia under its Tesla decision. The court concluded that the Board’s Tesla standard did not adequately balance employees’ rights with an employer’s legitimate business interests.

For employers, this is a significant development, but not a nationwide green light to restrict union apparel. While the decision does not eliminate employees’ rights to display union messages or overrule Tesla nationwide, it signals growing judicial skepticism of the Board’s restrictive approach. 

Many nonunion employers do not expect that they may be one ordinary employee group chat away from a potential National Labor Relations Act (NLRA) issue. The common misconception is that labor law only matters when a union is involved. It doesn’t. As a result, disciplinary decisions that seem routine can quickly become unfair labor practice charges if managers fail to recognize when employees are engaging in protected concerted activity.

Although they may not realize it, even non-union employers face risk under the National Labor Relations Act. Everyday workplace decisions can trigger scrutiny and while the enforcement climate is shifting, the underlying risk remains. For employers, this is no longer a niche legal issue. It’s a legitimate business risk.

For a growing number of employers, the concerns keeping them awake include whether their employee handbook violates federal labor law, whether a supervisor’s offhand comment during a tense performance review could trigger an unfair labor practice charge, or whether an employee group text complaining about the schedule somehow became protected concerted activity under the NLRA.