NLRB Memo Provides Guidance To Employers On Standard For Handbook Rules
Published by Eric A. Welter and Kimberly Kauffman on July 18, 2018
The NLRB memo directs officials in the agency on how to interpret and enforce the Board’s standard for work rules, thus also providing useful guidance to employees when assessing whether certain rules may violate the National Labor Relations Act (NLRA).
The Office of the General Counsel of the National Labor Relations Board (NLRB) recently released a memo to agency officials that contains general guidance on the balancing test established by the Board in its decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). (Read our overview of the decision here.) In the Boeing decision, the Board analyzed whether handbook rules violate employees’ rights under the NLA to engage in concerted activity. The Board outlined three categories of facially neutral work rules: (1) rules that are generally lawful to maintain, (2) rules warranting individualized scrutiny, and (3) rules that are unlawful to maintain.
The new memo goes beyond the test set out in Boeing by providing guidance on the placement of specific types of workplace rules into these three categories. The memo also makes clear that following Boeing, ambiguities in rules are no longer interpreted against the drafter and general rules should not automatically be interpreted as banning all activity conceivable under the rule. Furthermore, Boeing applied only to the maintenance of facially lawful rules. Therefore, even if a rule is facially lawful, it still cannot be applied in a way that inhibits an employee’s right to engage in activities protected under the NLA.
The first category of rules in the memo are generally lawful because, when reasonably interpreted, they either do not prohibit or otherwise interfere with an employee’s rights under the NLRA, or any potential adverse impact on protected rights is outweighed by the employer’s business interests in the rule. Examples of rules that are generally lawful are:
- Civility rules (such as rules prohibiting name-calling, gossip and rudeness);
- No-photography and no-recording rules;
- Rules prohibiting insubordination, uncooperative behavior, or other on-the-job conduct that negatively affects the employers operations;
- Disruptive behavior rules;
- Rules protecting confidential, proprietary and customer information or documents;
- Rules against defamation or misrepresentation;
- Rules prohibiting employer logos or other intellectual property;
- Rules requiring authorization to speak for the company; and
- Rules banning disloyalty, nepotism or self-enrichment.
The second category of rules are rules that are not obviously lawful or unlawful and should be evaluated on a case-by-case basis to determine the degree of adverse impact, if any, on employee rights under the NLA. The context of rules that fall under this category should also be analyzed. Examples of possible Category 2 rules are:
- Broad conflict of interest rules
- Confidentiality rules broadly encompassing “employer business” or “employee information”
- Rules regarding disparagement or criticism of the employer
- Rules regulating use of the employer’s name
- Rules generally restricting speaking to the media or third parties
- Rules banning off-duty conduct that may harm the employer
- Rules against making false or inaccurate statements
The third and final category of rules are rules that are generally unlawful because they prohibit or limit protected activity and the adverse impact on employee rights under the NLA outweighs the business justifications for the rule. Examples of generally unlawful rules are:
- Confidentiality rules specifically regarding wages, benefits or working conditions
- Rules against joining outside organizations or voting on matters concerning the employer
Employers should consider reviewing their handbooks and policies in light of the NLRB’s memo, which provides specific examples of rules that are most likely lawful or unlawful, as well as rules that may or may not be lawful, depending on the circumstances. While the memo provides a good starting point for employers to determine whether a certain rule is unlawful under the NLA, employers should also continue to monitor NLRB decisions for additional insight and analysis on the legality of certain workplace rules.Topics: Employment Discrimination and Harassment, Employment Litigation, Hiring, National Labor Relations Act (NLRB), National Labor Relations Board, NLRB, Performance Management and Termination, Policies Procedures and Employee Handbooks, Social Media and Online Conduct