National Labor Relations Board (NLRB) General Counsel Peter Robb has issued a memorandum about the NLRB’s new approach to cases charging that employee work rules or employment policies (also referred to as employee handbook policies) unlawfully interfere with employees’ rights under the National Labor Relations Act (NLRA). The memo was written in follow-up to the NLRB’s December 2017 Boeing decision and provides employers with useful guidance.
Boeing overrules the Board’s 2004 Lutheran Heritage Village-Livonia decision holding that facially neutral work rules could be unlawful if employees would “reasonably construe” the language to prohibit the exercise of their NLRA-protected rights. Providing employers with greater flexibility, the Board in Boeing replaced the “reasonably construe” standard with a balancing test that takes into consideration the nature and extent of the potential impact on employees’ NLRA rights as well as the employer’s legitimate justifications for the rule. The Board also established three categories for classifying such rules in an effort to provide greater clarity and certainty.
The general counsel’s memorandum discusses the Boeing decision and the agency’s interpretation for purposes of investigating and prosecuting charges. The memo notes that the new approach pertains only to charges about the mere maintenance of a work rule, not those addressing an employer’s application of the work rule. Likewise, the new approach applies only to facially neutral work rules and not to rules that expressly restrict employees from engaging in NLRA-protected activity.
The memo also explains the three categories of work rules, as follows:
Category 1: Rules that are Generally Lawful to Maintain
Rules in the first category are “generally lawful, either because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of rights guaranteed by the [NLRA], or because the potential adverse impact on protected rights is outweighed by the business justifications associated with the rule.” It includes the following types of rules (specific examples are included in the memo):
- Civility rules
- No-photography and no-recording rules
- Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations
- Disruptive behavior rules
- Rules protecting confidential, proprietary, and customer information or documents
- Rules against defamation or misrepresentation
- Rules against using employer logos or intellectual property
- Rules requiring authorization to speak for the company
- Rules banning disloyalty, nepotism, or self-enrichment
Category 2: Rules Warranting Individualized Scrutiny
Rules in the second category are “not obviously lawful or unlawful, and must be evaluated 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 legality often will depend on context. The following are “possible examples" of the kind of rules that belong in this category:
- Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment
- 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 might harm the employer
- Rules against making false or inaccurate statements
Category 3: Rules that are Unlawful to Maintain
Rules in the third category are “generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule.” They include:
- Confidentiality rules specifically regarding wages, benefits, or working conditions
- Rules against joining outside organizations or voting on matters concerning employer
While the Boeing ruling and general counsel’s memo are good news for employers, they should not be interpreted as definitively establishing the lawfulness of any particular policy that a company might maintain. AGC members may wish to review their rules and policies in light of these developments, not only to take advantage of the more employer-friendly posture of the current NLRB but also to ensure compliance with the law. Those seeking to hire outside counsel to assist in such a review can consult the AGC Labor and Employment Law Directory for a referral.