NLRB Issues New Guidance On Handbook Rules and Procedures

06.28.2018

On June 6, 2018, the General Counsel of the National Labor Relations Board (“NLRB”) released a memorandum, offering new guidance on how the NLRB will interpret various employee handbook rules and policies. In its decision, The Boeing Company, 365 NLRB No. 154 (December 14, 2017), the NLRB established a new standard that focused on delineating the balance between an employee’s Section 7 “protected activity” rights and an employer’s rights to maintain discipline and promote productivity in the workplace. In reaching the Boeing decision, the NLRB severely criticized its prior decision of Lutheran Heritage Village Livonia, 343 NLRB 646 (2004) for being overbroad and prohibiting any rule that could be interpreted as covering protected activity. Overturning the first prong of Lutheran Heritage, Boeing provided a new balancing test and significantly altered the NLRB’s jurisprudence on the reasonable interpretation of handbook rules.

The General Counsel’s memorandum identified three categories of rules and policies, ranging from generally lawful to those that are unlawful for employers to maintain. In addition, the memorandum offered specific examples of rules that are likely to fall into each of these categories. Each of the categories, as well as specific examples follow:

Category 1: Rules that are Generally Lawful to Maintain
The NLRB stated that rules in Category 1 are “generally lawful” because either: (1) the rule does not prohibit or interfere with the exercise of protected rights; or (2) because the potential adverse impact on protected rights are outweighed by the business justifications behind the rule.  The memorandum offered the following examples of rules deemed generally lawful:

1. Civility Rules, such as “behavior that is rude, discourteous, condescending, unbusiness like or otherwise socially unacceptable is prohibited.”
2. No-Photography Rules and No-Recording Rules, such as “employees may not record conversations, phone calls, images or company meetings with any recording device without prior approval.”
3. Rules Against Insubordination, Non-cooperation, or On-the-job Conduct that Adversely Affects Operations, such as “insubordination or being uncooperative with supervisors . . . or otherwise engaging in conduct that does not support the [Employer’s] goals and objectives is prohibited.”
4. Disruptive Behavior Rules, such as “creating a disturbance on Company premises or creating discord with clients or fellow employees is prohibited.”
5. Rules Protecting Confidential, Proprietary, and Customer Information or Documents, such as “information concerning customers . . . shall not be disclosed, directly or indirectly or used in any way.”
6.  Rules against Defamation or Misrepresentation, such as “misrepresenting the company’s products or services or its employees is prohibited.”
7. Rules against Using Employer Logos or Intellectual Property, such as “do not use any Company logo, trademark, or graphic [without] prior written approval.”
8. Rules Requiring Authorization to Speak for Company, such as “the company will respond to media requests for the company’s position only through the designated spokespersons.”
9. Rules Banning Disloyalty, Nepotism, or Self-Enrichment, such as “employees may not engage in conduct that is disloyal, competitive, or damaging to the company such as illegal acts in restraint on trade.”

Category 2: Rules Warranting Individualized Scrutiny
The NLRB will evaluate rules in Category 2 on a “case-by-case basis” to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications. The memorandum offered the following examples as possible Category 2 rules:

1. Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment.
2. Confidentiality rules broadly encompassing “employer business” or “employee information.”
3. Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees).
4. Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark).
5. Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf).
6. Rules banning off-duty conduct or participation in outside organizations that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work).
7. Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

Category 3: Rules that are Unlawful to Maintain
The NLRB deems rules in Category 3 as “generally unlawful” because they would: (1) prohibit or limit NLRA-protected conduct; and (2) the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with such rules. The memorandum offered the following examples as rules found generally unlawful:

1. Confidentiality Rules Specifically Regarding Wages, Benefits, or Working Conditions, such as “employees shall not disclose any information pertaining to the wages, commissions, performance, or identity of employees of the Employer or working conditions at the Employer to any media source.”
2. Rules Against Joining Outside Organizations or Voting on Matters Concerning the Employer, such as bans or other limitations on membership in, or work for, outside organizations that would be interpreted as covering unions.

Employee handbook rules and policies that have been targeted as unlawful in past years have now been deemed lawful under Boeing and the General Counsel’s memorandum. Employers should also consider that regardless of the literal lawfulness of policy language, the timing of implementation of such language can also raise separate issues under the National Labor Relations Act, particularly where such changes are alleged to happen in response to protected activity.  Employers that revised employment rules in years past due to past NLRB decisions may desire to review current handbook rules to determine if they can be revised in light of the General Counsel’s memorandum to enhance their ability to maintain discipline and promote productivity.

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