NLRB GC Urges Board to Overturn Stericycle Work-Rules Standard
The General Counsel's brief in Atlassian Corp. seeks to replace the 2023 Stericycle presumption of unlawful work rules with a contextual two-step balancing test, days after the Board vacated Lion Elastomers II and restored Wright Line.
Two developments point in the same direction for employer-side labor counsel. First, the General Counsel's September 11, 2026 brief in Atlassian Corp. (16-CA-324971) asks the Board to abandon the 2023 Stericycle presumption — that a rule with a reasonable tendency to chill Section 7 activity is presumptively unlawful unless the employer proves a legitimate interest and no narrower alternative — and to substitute a two-step test: whether an "objectively reasonable employee," reading the rule in context, would see possible interference, followed by genuine balancing of the employer's legitimate business justifications against the degree of interference. Applied to the four rules litigated in Atlassian, the GC would uphold civility, anti-insult, and stakeholder-communication rules, and invalidate only the confidentiality rule to the extent it captured nonpublic compensation information.
Second, on September 23, 2026 the Board issued a supplemental decision vacating Lion Elastomers II and restoring the General Motors/Wright Line burden-shifting framework, while leaving the setting-specific question open for a future case.
Neither change is settled: the GC brief is advocacy, and adopting a new rule of decision requires a Board decision. The concrete action is to review work rules so they survive under either standard, and to watch for a merits ruling on the proposed test.