Last week, the National Labor Relations Board’s Office of General Counsel (the NLRB’s “G.C.”)FN1 provided clarity as to what facially neutral employment handbook rules will be considered lawful under the NLRB’s updated Boeing Company test.FN2
Under the updated test,FN3 the NLRB balances (i) the nature and extent of the potential impact on employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”),FN4 and (ii) company’s legitimate business justifications for the rule. To provide guidance to NLRB regional offices and employers, the NLRB also groups employment policies, rules, and handbook provisions into 3 categories. The GC’s newly-issued Memorandum describes what policies fit into these categories.
1. Category 1 – Presumptively Lawful Workplace Rules
The G.C. generally considers the following types of rules to be lawful:
- Civility rules and restrictions on rude, condescending, and offensive language.
- Restrictions on workplace photographs or recording.
- Rules against insubordination and non-cooperation.
- Rules against disruptive behavior or conduct.
- Rules protecting confidential, proprietary, and customer information or documents, including banning the discussion of confidential, propriety, or customer information that make no mention of employee or wage information.
- Rules against defamation or misrepresentation.
- Rules prohibiting use of employer logos, trademarks, graphics or intellectual property for any reason, or without prior written approval.
- Rules requiring authorization to speak for the company or requiring that only certain persons speak for the company.
- Rules banning disloyalty, nepotism, self-enrichment, or other damaging activities that interfere with the employee’s judgment concerning the company’s best interest.
2. Category 2 – To Be Decided on a Case-by-Case Basis
The G.C.’s office will consider the following rules on a case-by-case basis:
- Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment.
- Confidentiality rules broadly encompassing “employer business” or “employee informant” as opposed to confidentiality rules regarding customer or proprietary information.
- Rules prohibiting disparagement or criticism of the employer, as supposed to civility rules regarding disparagement of employees.
- Rules regulating the use of the employer’s name, as opposed to rules regulating use of the employer’s logo or trademark.
- Rules generally restricting speaking to the media or third parties, as opposed to rules restricting speaking to the media on the employer’s behalf.
- Rules banning off-duty conduct that might harm the employer, as opposed to rules banning insubordinate or disruptive conduct at work.
- Rules against making false or inaccurate statements, as opposed to rules making defamatory statements.
3. Category 3 – Unlawful Rules
The following rules are generally unlawful:
- Rules requiring confidentiality of wages, benefits, or working conditions.
- Rules against joining outside organizations or voting on matters concerning the employer.
The GC’s guidance gives employers considerably greater flexibility in implementing workplace policies. However, even presumptively lawful, Category 1 rules may be held unlawful where they are imposed for the purpose of restricting employee rights or enforced to restrict such rights.
FN1: The G.C. is the investigative and prosecution division for the NLRB.
FN3: The Rocky Mountain Employer previously discussed the The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017) decision. See http://www.rockymountainemployersblog.com/blog/2017/12/22/nlrb-upends-obama-era-legal-test-for-employee-handbook-rules.
FN4: Section 7 of the NLRA gives employees 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. . . .”