Can a Vermont employer require assignment of every invention?
There is no statutory ceiling. Unlike California or New York, Vermont has no employee-invention-assignment statute — nothing that voids an assignment of a true own-time, own-resource invention — so an assignment clause's reach is bounded only by ordinary contract law, the common-law inventor-owns default, and the federal patent and copyright overlay. Vermont's trade-secrets act expressly leaves contractual remedies untouched, and the baseline the contract operates against is that rights in an invention belong to the inventor. On a touch screen, a tap shows all 2 sources in this group.
Because there is no statute on point, the limits come from general principles rather than a legislative carve-out. Title 21, chapter 5 of the Vermont Statutes Annotated (Employment Practices) — current through the 2025 session — contains no invention-, patent-, or intellectual-property-assignment provision, and the only invention-focused chapter anywhere in the Vermont statutes is 9 V.S.A. chapter 120, a consumer-protection statute aimed at bad-faith assertions of patent infringement, not employment. The gap is not an oversight: S.113 (2013), an act relating to employee rights to certain inventions, would have created a California-style own-time carve-out, and it died after a first reading and committee referral. Vermont considered the statutory model and declined it.
What Vermont statute law does say points the same way. The Vermont Trade Secrets Act — the state's version of the Uniform Trade Secrets Act, 9 V.S.A. §§ 4601–4609 — expressly does not affect contractual remedies, so invention-assignment and nondisclosure agreements are left to ordinary contract law rather than displaced by the statute .
“contractual remedies, whether or not based upon misappropriation of a trade secret”
The substantive default that contract law operates against is the federal patent premise restated in Stanford v. Roche: absent an effective assignment, rights in an invention belong to the person who conceived it .
When a Vermont-law invention agreement has mattered in litigation, it has mattered as contract and as trade-secret evidence. In Vermont Microsystems, Inc. v. Autodesk, Inc., the Second Circuit, applying Vermont trade-secret law, treated a departing engineer's Invention and Nondisclosure Agreement as the foundation of the employer's trade-secret claim .
That decision polices secrecy, not ownership — it is not a holding that any particular assignment scope is enforceable. The practical consequence is that a Vermont employer can, in principle, contract for assignment more broadly than a California or Washington employer, because no statute carves out own-time inventions from the reach of the clause. But that breadth is not unlimited: an assignment clause is still an ordinary contract term, subject to general contract-law defenses, and to the extent it operates as a restraint on the employee's future work it faces Vermont's covenant-reasonableness limits, discussed in the trailing-clause question below.
Sources for this answer
9 V.S.A. § 4607(b)(1) provides that the Vermont Trade Secrets Act does not affect contractual remedies, so invention-assignment and nondisclosure agreements are governed by ordinary contract law rather than displaced by the statute.
contractual remedies, whether or not based upon misappropriation of a trade secret
See 9 V.S.A. § 4607(b)(1).
Stanford v. Roche confirms the long-standing premise of U.S. patent law that rights in an invention belong to the inventor, the baseline against which any assignment clause is measured.
Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor.
See Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011).
Vermont Microsystems v. Autodesk, applying Vermont trade-secret law, rested the employer's trade-secret rights on the employee's Invention and Nondisclosure Agreement — Vermont-law invention agreements are policed by contract and trade-secret law, not by any invention-assignment statute.
As a full-time employee, Berkes signed an Invention and Nondisclosure Agreement in which he acknowledged that all trade secrets developed on VMI's time were company property and promised not to disclose such trade secrets for the benefit of himself or others.
See Vermont Microsystems, Inc. v. Autodesk, Inc., 88 F.3d 142 (2d Cir. 1996).
Must a Vermont employer notify the employee?
Not applicable. Because Vermont has no invention-assignment statute, there is no statutory carve-out to notify the employee about and no notice requirement of the kind California imposes under Labor Code § 2872 or Washington imposes under RCW 49.44.140(3). What matters in Vermont instead is practical notice about confidentiality: trade-secret status under the Vermont Trade Secrets Act depends on efforts that are reasonable under the circumstances to maintain secrecy .
There is nothing to give notice of. A notice requirement exists in California and Washington precisely to alert the employee to a statutory own-time carve-out that limits the assignment; Vermont has enacted no such carve-out, so there is no statutory line for a notice to mark. This is why the entry is marked not applicable rather than a bare no: the question presupposes a statutory carve-out that Vermont does not have.
Notice to employees still matters in Vermont — just through trade-secret law rather than an invention statute. The Vermont Trade Secrets Act conditions trade-secret status on the owner's secrecy efforts, which is what makes a signed invention and confidentiality agreement legally valuable here .
“the subject of efforts that are reasonable under the circumstances to maintain its secrecy”
The Vermont Supreme Court has enforced that principle against an employer. In Omega Optical, Inc. v. Chroma Technology Corp., the court affirmed judgment against an employer whose confidence claims failed because it never told its employees what was supposed to stay secret .
The same logic runs through the invention-agreement case law. Vermont Microsystems required the employer to prove its own secrecy conduct before it could enforce rights under the employee's Invention and Nondisclosure Agreement .
For a multistate employer the takeaway is the inverse of the notice states: a Vermont employer neither has to give a § 2872-style notice nor can rely on one to cure an overbroad clause. But an employer that skips written agreements and confidentiality notices altogether weakens the trade-secret protection that Vermont law does supply.
Sources for this answer
9 V.S.A. § 4601(3) conditions trade-secret status on efforts that are reasonable under the circumstances to maintain secrecy, which is why written invention and confidentiality agreements matter in Vermont even though no statute requires any employee notice.
the subject of efforts that are reasonable under the circumstances to maintain its secrecy
See 9 V.S.A. § 4601(3).
Omega Optical v. Chroma Technology affirms judgment against an employer that failed to put its employees on explicit or implicit notice of confidentiality — telling employees what is confidential matters practically in Vermont even though no statute requires it.
In light of this and other evidence available to the trial court, we find no error in the court’s finding that Omega failed to take steps to put its employees on explicit or implicit notice that certain information conveyed to them during their employment was to be kept confidential.
See Omega Optical, Inc. v. Chroma Technology Corp., 174 Vt. 10, 800 A.2d 1064 (2002).
Vermont Microsystems v. Autodesk holds that to enforce rights under an employee's Invention and Nondisclosure Agreement, the employer must demonstrate that it took reasonable steps to guard its trade secrets.
To enforce its rights under the Invention and Nondisclosure Agreement, VMI must demonstrate that it took reasonable steps to guard its trade secrets.
See Vermont Microsystems, Inc. v. Autodesk, Inc., 88 F.3d 142 (2d Cir. 1996).
Who owns an invention by default in Vermont?
The inventor, unless hired to invent. Absent a written assignment, the baseline under federal patent law — which governs who holds title to a patentable invention in Vermont as elsewhere — is that rights belong to the employee who conceived it. The narrow exception is the employee hired to invent, whose resulting invention the employer may claim. On a touch screen, a tap shows all 2 sources in this group.
Stanford v. Roche anchors the default. The Supreme Court held that even the Bayh-Dole Act did not displace the long-standing rule that an invention belongs to its inventor, treating that premise as the baseline against which any assignment is measured .
Because ownership starts with the inventor, an employer's title is derivative — it exists only if and to the extent the employee assigned it. Any third-party interest must trace back to that inventor-grantor .
The principal exception is the employee hired to invent. Under United States v. Dubilier Condenser Corp., an employee engaged to make a particular invention who succeeds during the term of service must assign the resulting patent to the employer .
Short of that, where the employee is neither hired to invent nor bound by a written assignment but has used the employer's time, tools, and materials to reach a concrete result, the employer's remedy under Dubilier is only an equitable shop right — a non-exclusive license to use the invention, not ownership of it. No Vermont appellate decision found in our review addresses hired-to-invent, shop right, or the default ownership of an employee invention, so the federal baseline operates unmodified; the closest Vermont-flavored authority, Vermont Microsystems, enforced trade-secret rights under an invention agreement and is not an ownership-default holding. Because ownership therefore starts with the inventor and Vermont has no statute filling the gap, the dependable path for an employer is a written present-assignment (hereby assigns) clause that transfers legal title automatically on conception, rather than a future promise to assign that leaves the employer with a mere equitable claim.
Sources for this answer
Stanford v. Roche confirms the long-standing premise of U.S. patent law that rights in an invention belong to the inventor.
Since 1790, the patent law has operated on the premise that rights in an invention belong to the inventor.
See Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011).
Stanford v. Roche holds that although others may acquire an interest in an invention, that interest as a general rule must trace back to the inventor — so an employer takes title only through an assignment from the employee-inventor.
Thus, although others may acquire an interest in an invention, any such interest — as a general rule — must trace back to the inventor.
See Bd. of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776 (2011).
United States v. Dubilier Condenser Corp. holds that an employee hired to make an invention who succeeds during the term of service is bound to assign the resulting patent to the employer.
One employed to make an invention, who succeeds, during his term of service, in accomplishing that task, is bound to assign to his employer any patent obtained.
See United States v. Dubilier Condenser Corp., 289 U.S. 178 (1933).
Are trailing-assignment (holdover) clauses enforceable in Vermont?
Unsettled. No Vermont decision found in our review addresses a trailing clause that reaches inventions first conceived after employment ends, and there is no statutory framework to supply a cap — Vermont has no invention-assignment statute and no employment noncompete statute either. Because a holdover clause operates as a restraint on the former employee's work, a Vermont court would most likely test it under the state's covenant-reasonableness line, proceeding with caution but enforcing a restraint the employer shows to be reasonable. On a touch screen, a tap shows all 2 sources in this group.
Two gaps define the Vermont picture. First, there is no statute: nothing caps the duration of a post-employment trailing assignment, and Vermont's covenant regime is entirely common law — a bill that would have banned most employment noncompetes (H.205, 2025–2026 biennium) was recommitted to committee in March 2026 and is not law. Second, our review found no Vermont decision applying the covenant cases to an invention-holdover clause, so everything below is analogy from the restrictive-covenant line, not holding.
What Vermont does supply is a well-developed posture toward restraints on competitive employment. The starting point is caution. Roy's Orthopedic, Inc. v. Lavigne states the threshold rule .
Caution is not hostility. In Vermont Electric Supply Co. v. Andrus, the Vermont Supreme Court framed enforcement as the default and put the burden of defeating a restraint on the employee , and the court itself affirmed injunctive relief enforcing a five-year covenant on its facts. On a touch screen, a tap shows all 2 sources in this group.
The Andrus test closely tracks the one the court stated in 1934 in Dyar Sales & Machinery Co. v. Bleiler, which also placed the burden of proof on the employee .
The current framework is the Restatement formulation adopted in Systems and Software, Inc. v. Barnes, which asks whether the restraint exceeds what the employer's legitimate interest needs or is outweighed by hardship to the employee and injury to the public .
Barnes also matters for what a holdover clause could permissibly protect: the court rejected the argument that restraints may protect only trade secrets or confidential customer information, recognizing a broader band of legitimate interests .
If a Vermont court found a holdover clause overbroad, the likely — but not guaranteed — outcome is trimming rather than total invalidation. The Second Circuit predicted in A.N. Deringer, Inc. v. Strough that Vermont would enforce a defective restrictive covenant to the limit of its validity , and the Vermont Supreme Court in Summits 7, Inc. v. Kelly later signaled the same approach .
“the court may enforce the agreement to the extent that it is reasonable.”
Neither statement is a square Vermont Supreme Court holding adopting reformation — Deringer is a federal court's prediction of Vermont law , and Summits 7 made its statement while declining to reach the employee's geographic-scope challenge, because she had taken a job within a reasonably restricted area, without deciding how far an overbroad covenant could be reformed — so an overbroad trailing clause still carries real total-invalidation risk.
One wrinkle cuts in the employer's favor. Vermont treats mid-employment consideration generously: Summits 7 holds that continued at-will employment alone supports a restrictive covenant signed after hiring, which makes rolling an invention-assignment agreement out to existing Vermont employees easier than in states that demand fresh consideration .
The safe reading is that a modest holdover clause — short, tied to the employer's legitimate interests, and no broader than needed — has a reasonable prospect of enforcement under the line running from Andrus to Barnes , while an aggressive one is at meaningful risk, and the invention-specific application of all of it remains undecided.
Sources for this answer
Roy's Orthopedic v. Lavigne states Vermont's threshold posture — courts proceed with caution when asked to enforce restraints on competitive employment — the frame a holdover invention-assignment clause would most likely be tested under.
When this Court is asked to enforce restrictive covenants against competitive employment, we will proceed with caution, since such restraints “run counter to that public policy favoring the right of individuals to freely engage in desirable commercial activity.”
See Roy's Orthopedic, Inc. v. Lavigne, 142 Vt. 347, 454 A.2d 1242 (1982).
Vermont Electric Supply v. Andrus holds that a restraint will be enforced unless it is contrary to public policy, unnecessary for the employer's protection, or unnecessarily restrictive of the employee's rights — and places the burden of establishing those facts on the employee.
enforcement will be ordered unless the agreement is found to be contrary to public policy, unnecessary for protection of the employer, or unnecessarily restrictive of the rights of the employee, with due regard being given to the subject matter of the contract and the circumstances and conditions under which it is to be performed. The burden of establishing such facts is on the employee.
See Vermont Electric Supply Co. v. Andrus, 132 Vt. 195, 315 A.2d 456 (1974).
Dyar Sales & Machinery Co. v. Bleiler holds that post-employment restrictive provisions will be enforced in equity unless found contrary to public policy, unnecessary for the employer's protection, or unnecessarily restrictive of the employee's rights, and places the burden of proving those facts on the employee. The word ease is the source text's rendering of case.
Speaking generally, these cases hold that restrictive provisions like the one in this ease will be enforced in equity unless found to be contrary to public policy, unnecessary for the employer’s protection, or unnecessarily restrictive of the rights of the employee, due regard being had to the subject-matter of the contract and the circumstances and conditions under which it is to be performed. The employee has the burden of proving such facts.
See Dyar Sales & Mach. Co. v. Bleiler, 106 Vt. 425, 175 A. 27 (1934).
Vermont Electric Supply v. Andrus describes the covenant at issue: a promise not to compete in Rutland County in the kitchen design and sales business for five years after the employment ended.
After a year, he was asked to sign an agreement not to compete in Rutland County, in the business of selling, designing, laying out or displaying kitchens or kitchen cabinets for a period of five years after his employment with the plaintiff ceased.
See Vermont Electric Supply Co. v. Andrus, 132 Vt. 195, 315 A.2d 456 (1974).
Vermont Electric Supply v. Andrus affirms the judgment awarding injunctive relief on the five-year covenant and remands for the computation of damages.
The judgment awarding injunctive relief is affirmed and the cause is remanded for the computation of damages.
See Vermont Electric Supply Co. v. Andrus, 132 Vt. 195, 315 A.2d 456 (1974).
Systems and Software v. Barnes states Vermont's current reasonableness framework, applying the Restatement (Second) of Contracts § 188(1) formulation for when a restraint is unreasonably in restraint of trade.
is unreasonably in restraint of trade if (a) the restraint is greater than is needed to protect the promisee’s legitimate interest, or (b) the promisee’s need is outweighed by the hardship to the promisor and the likely injury to the public.
See Systems & Software, Inc. v. Barnes, 2005 VT 95, 178 Vt. 389, 886 A.2d 762.
Systems and Software v. Barnes rejects the premise that restraints may be enforced only to protect trade secrets or confidential customer information — Vermont recognizes a broader band of legitimate interests, which frames what a holdover assignment clause could permissibly protect.
This argument fails because it is based on a faulty premise — that noncompetition agreements may be enforced to protect only trade secrets or confidential customer information.
See Systems & Software, Inc. v. Barnes, 2005 VT 95, 178 Vt. 389, 886 A.2d 762.
A.N. Deringer v. Strough is the Second Circuit's prediction, applying Vermont law, that Vermont would enforce a defective restrictive covenant to the limit of its validity — a prediction, not a Vermont Supreme Court holding.
Thus, we conclude that Vermont would permit enforcement of a defective restrictive covenant to the limit of its validity.
See A.N. Deringer, Inc. v. Strough, 103 F.3d 243 (2d Cir. 1996).
Summits 7 v. Kelly signals that a Vermont court may enforce a restrictive agreement to the extent that it is reasonable — the strongest Vermont Supreme Court support for trimming rather than voiding an overbroad restraint, stated while declining to reach the employee's geographic-scope challenge rather than as a reformation holding.
the court may enforce the agreement to the extent that it is reasonable.
See Summits 7, Inc. v. Kelly, 2005 VT 97, 178 Vt. 396, 886 A.2d 365.
Summits 7 v. Kelly declines to consider whether the covenant's geographic scope was unreasonably broad because the employee took a job within a reasonably restricted area and the court may enforce the agreement to the extent that it is reasonable — it enforces the restriction as breached without deciding how far an overbroad covenant could be reformed.
Lasker does argue that the superior court erred by not addressing whether the geographic scope of the agreement was unreasonably broad, but, as we explain later, we need not consider this issue because Lasker plainly sought and obtained employment within a reasonably restricted geographic area, and the court may enforce the agreement to the extent that it is reasonable.
See Summits 7, Inc. v. Kelly, 2005 VT 97, 178 Vt. 396, 886 A.2d 365.
Summits 7 v. Kelly holds that continued at-will employment alone is sufficient consideration for a restrictive covenant signed during employment, which supports rolling out invention-assignment agreements to existing Vermont employees without fresh consideration.
we agree with the superior court, the majority of other courts, and the recent Restatement draft that continued employment alone is sufficient consideration to support a covenant not to compete entered into during an at-will employment relationship.
See Summits 7, Inc. v. Kelly, 2005 VT 97, 178 Vt. 396, 886 A.2d 365.
Smith, Bell & Hauck v. Cullins holds that an employee's restrictive covenant is personal to the contracting employer and incapable of effective assignment without the employee's consent or ratification — a successor-enforcement trap for invention-assignment agreements bundled with restrictive covenants in an acquisition.
Since the beneficial interest in Cullins’ agreement not to engage in the insurance business was personal to Smith, Bell & Company, Inc., it was incapable of effective assignment without the employee’s consent or ratification.
See Smith, Bell & Hauck, Inc. v. Cullins, 123 Vt. 96, 183 A.2d 528 (1962).
9 V.S.A. § 4601(3) conditions trade-secret status on efforts that are reasonable under the circumstances to maintain secrecy, which is why written invention and confidentiality agreements matter in Vermont even though no statute requires any employee notice.
the subject of efforts that are reasonable under the circumstances to maintain its secrecy
See 9 V.S.A. § 4601(3).
Omega Optical v. Chroma Technology affirms judgment against an employer that failed to put its employees on explicit or implicit notice of confidentiality — telling employees what is confidential matters practically in Vermont even though no statute requires it.
In light of this and other evidence available to the trial court, we find no error in the court’s finding that Omega failed to take steps to put its employees on explicit or implicit notice that certain information conveyed to them during their employment was to be kept confidential.
See Omega Optical, Inc. v. Chroma Technology Corp., 174 Vt. 10, 800 A.2d 1064 (2002).
Vermont Microsystems v. Autodesk holds that to enforce rights under an employee's Invention and Nondisclosure Agreement, the employer must demonstrate that it took reasonable steps to guard its trade secrets.
To enforce its rights under the Invention and Nondisclosure Agreement, VMI must demonstrate that it took reasonable steps to guard its trade secrets.
See Vermont Microsystems, Inc. v. Autodesk, Inc., 88 F.3d 142 (2d Cir. 1996).
Paper alone does not protect a Vermont employer; conduct around the agreement does. Trade-secret status under Vermont law depends on efforts that are reasonable under the circumstances to maintain secrecy , an employer that never puts employees on explicit or implicit notice of what is confidential can lose its claims outright , and even rights under a signed Invention and Nondisclosure Agreement are enforceable only on proof that the employer took reasonable steps to guard its trade secrets . In an acquisition, do not assume bundled agreements travel with the business: the Vermont Supreme Court has held an employee's restrictive covenant personal to the contracting employer and incapable of effective assignment without the employee's consent or ratification, so a buyer should obtain employee consents or ratifications (or fresh agreements) rather than relying on the asset-purchase paperwork alone .
What does federal law require a confidentiality and invention assignment agreement in Vermont to say about whistleblowers and pay?
An employee confidentiality, non-compete, or invention assignment agreement signed or updated now that governs trade secrets or other confidential information must give the Defend Trade Secrets Act whistleblower-immunity notice, and for employees the National Labor Relations Act covers, Section 7 of that Act protects concerted activity, including joining together over pay and working conditions, that a broad confidentiality clause can restrict. The employer may satisfy the notice duty by cross-referencing a qualifying policy document provided to the employee, but an employer that omits the notice may not be awarded exemplary damages or attorney fees under the Defend Trade Secrets Act in an action against an employee who was not given notice.
The notice describes a federal immunity: an individual cannot be held liable under federal or state trade-secret law for disclosing a trade secret in confidence to a government official or an attorney solely to report or investigate a suspected violation of law, or in a court filing made under seal. For an agreement signed or updated now, the duty to give that notice reaches any agreement with an employee that governs trade secrets or other confidential information, whatever else the agreement does.
Section 7 gives employees the National Labor Relations Act covers a statutory right to engage in concerted activity for mutual aid or protection, including joining together to improve pay and working conditions. For employees the Act covers, the Board's work-rule standard adopted in 2023 makes a rule presumptively unlawful if it has a reasonable tendency to chill employees from exercising their Section 7 rights; an employer can rebut that presumption only by showing a legitimate and substantial business interest it cannot serve with a more narrowly tailored rule. The 2023 standard may change, but the Section 7 right it enforces is statutory. State law may add its own requirements for the same clauses.
A form carried over without the immunity notice, or a cross-reference to a reporting policy the employee never received, leaves the confidentiality clause without a valid notice, so the Act's exemplary damages and attorney fees are unavailable against that employee. A Confidential Information definition that sweeps in pay and working conditions with no carve-out exposes the employer to an unfair-labor-practice finding for employees the Act covers.
Sources for this answer
An individual is immune from criminal and civil liability under federal and state trade-secret law for disclosing a trade secret in confidence to a government official or an attorney solely to report or investigate a suspected violation of law, or in a court filing made under seal.
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that— (A) is made— (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
See 18 U.S.C. § 1833(b)(1).
An employer must give notice of the trade-secret whistleblower immunity in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.
An employer shall provide notice of the immunity set forth in this subsection in any contract or agreement with an employee that governs the use of a trade secret or other confidential information.
See 18 U.S.C. § 1833(b)(3)(A).
An employer complies with the notice requirement by cross-referencing a policy document, provided to the employee, that sets out the employer's reporting policy for a suspected violation of law.
An employer shall be considered to be in compliance with the notice requirement in subparagraph (A) if the employer provides a cross-reference to a policy document provided to the employee that sets forth the employer's reporting policy for a suspected violation of law.
See 18 U.S.C. § 1833(b)(3)(B).
An employer that does not give the required notice may not be awarded exemplary damages or attorney fees in a trade-secret action against an employee who did not receive it.
If an employer does not comply with the notice requirement in subparagraph (A), the employer may not be awarded exemplary damages or attorney fees under subparagraph (C) or (D) of section 1836(b)(3) in an action against an employee to whom notice was not provided.
See 18 U.S.C. § 1833(b)(3)(C).
Section 7 gives employees the right to engage in concerted activities for mutual aid or protection, the statutory basis for keeping discussion of pay and working conditions outside confidentiality restrictions.
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title.
See 29 U.S.C. § 157 (NLRA § 7).
The National Labor Relations Board protects the right of private-sector employees, with or without a union, to join together to improve wages, benefits, and working conditions.
Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions.
See NLRB Office of Public Affairs, news release of Feb. 21, 2023 (agency mission statement).
Under the work-rule standard the Board adopted in 2023, a rule with a reasonable tendency to chill employees from exercising their Section 7 rights is presumptively unlawful unless the employer proves a legitimate and substantial business interest it cannot advance with a more narrowly tailored rule.
Under the new standard adopted in Stericycle, the General Counsel must prove that a challenged rule has a reasonable tendency to chill employees from exercising their rights. If the General Counsel does so, then the rule is presumptively unlawful. However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.
See Stericycle, Inc., 372 NLRB No. 113 (2023); NLRB Office of Public Affairs, Board Adopts New Standard for Assessing Lawfulness of Work Rules (Aug. 2, 2023).