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June 11, 2018

NLRB General Counsel Issues Guidance On New Workplace Rules Standards

On June 6, 2018, the General Counsel of the National Labor Relations Board (the “Board” or the “NLRB”) issued a memorandum (the “Memorandum”) to the NLRB’s regional officials detailing how they should apply the NLRB’s new employee handbook standard.  Notably, the Memorandum declared that nine (9) standard employer policies will now be presumed lawful under the National Labor Relations Act (the “NLRA”), absent evidence that they are being applied to protected concerted activity.  The General Counsel also provided guidance as to what rules remain per se unlawful as well as those that require a case-by-case analysis as to their lawfulness.  A copy of the Memorandum may be found here

The Memorandum is based upon the Board’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).  In Boeing, the Board reassessed its standard for determining when the mere maintenance of a work rule violates Section 8(a)(1) of the NLRA.  Prior to Boeing, the Board under the Obama administration took the position that these facially neutral policies violated the NLRA because they could interfere with employees’ exercise of their rights to engage in protected concerted activities under Section 7 of the NLRA.For more information on the NLRB’s previous standard, see our previous alert: “NLRB General Counsel Issues Guidance on Workplace Rules.” 

Category 1 Rules: Presumptively Lawful

The General Counsel declared that the following nine standard employer policies will now be considered “Category 1” rules, which are generally presumed lawful to maintain.

  1. Civility Rules

These rules concern inappropriate, discourteous, rude, condescending, or socially inappropriate conduct.  Employers will be allowed to establish workplace rules prohibiting employees from making negative or disparaging comments about the employer’s employees, customers, patients, or visitors.  Employers may also forbid employees from posting any statements or media that reasonably could be viewed as disparaging to employees.  In Boeing, the NLRB found that these types of rules, when reasonably interpreted, would not interfere with the exercise of NLRA.  Even if they could potentially interfere, any adverse effect would be comparatively slight as a broad range of activities protected by the NLRA are consistent with the basic standard of civility. 
Such interpretation is particularly important in light of the new guidance on workplace harassment published by the Equal Employment Opportunity Commission (“EEOC”) that recommended civility training for employees.  A copy of the EEOC’s report may be found here

  1. Ban on Photography and Recording

The General Counsel advised that employers have a legitimate interest in limiting recording and photography on their property, even though such rules may occasionally chill employees from taking photographs of their protected concerted activity or working conditions.  The substantial interest in security concerns, protection of property, protection of confidential information, and maintenance of operations outweighs the small risk to NLRA-protected activity.  However, a ban on the mere possession of cell phones at work is unlawful where the employees’ main method of communication during the work day is by cell phone.

  1. Rules Against Insubordination, Non-Cooperation, or Conduct Adversely Affecting Operations

The activities covered by these rules are, according to the Memorandum, generally unprotected by the NLRA.  The General Counsel explained that an employer has a substantial interest in preventing insubordination or non-cooperation at the workplace.  Where insubordination workplace rules lack any reference that would indicate that Section 7 activity is forbidden, the NLRB should not presume any impact on NLRA rights because employers have the right to expect employees to perform their work and follow directives. 

  1. Disruptive Behavior Rules

Workplace rules prohibiting disruptive and boisterous conduct are lawful.  Such prohibitions may be seen as impeding protected concerted activity, such as walk-outs, protests, picketing, or strikes.  However, the General Counsel noted that such protected activity is often engaged in due to the disruptive nature of the conduct.  Thus, employees would not generally refrain from such activity merely because a workplace rule prohibits such conduct. 
Employers should note that a no-disruption rule may not be applied to discipline employees for a strike or walkout in some circumstances (which is left undefined in the Memorandum). 

  1. Rules Protecting Confidential, Proprietary, and Customer Information or Documents   

Employers may implement rules prohibiting employees from disclosing confidential, proprietary, and customer information.  In addition, employees also do not have a right to disclose employee information obtained from unauthorized access or use of confidential records.  Employees may not remove such records from the employer’s premises. 

  1. Rules Against Defamation or Misrepresentation

Workplace rules against defamation or misrepresentation are lawful, including those that ban misrepresenting the employer’s products or services or its employees and those that ban defamatory email messages.  The majority of protect concerted speech is subjectively honest and thus should not run afoul of rules against defamation or misrepresentation.  The General Counsel clarified that even concerted defamatory speech to improve working conditions can be unprotected if the defamation is intentional. 

  1. Rules Against Using Employer Logos or Intellectual Property

Employers are permitted to establish workplace rules prohibiting employee use of employer logos and trademarks.  The General Counsel reasoned that although some protected concerted activity might fall under such rule (e.g., using an employer’s intellectual property on leaflets or picket signs), usually employees will understand that the purpose of this ban would be to protect the employer’s intellectual property from commercial and other non-Section 7 related purposes.  The General Counsel recognized employers’ significant interest in protecting their financial investment in their intellectual property. 

  1. Rules Requiring Authorization to Speak for the Company

Rules that regulate who may speak on behalf of the employer will not impact Section 7 rights. 

  1. Bans on Disloyalty, Nepotism, or Self-Enrichment

Workplace rules may ban conflicts of interest, such as disloyalty, nepotism, self-enrichment, or employees who have financial interests in competitors of the employer. 

Category 2 Rules: Case-By-Case Analysis

The Memorandum provided examples of rules that are not obviously lawful or unlawful, but instead, must be individually evaluated to determine whether they would interfere with employees’ NLRA rights.  If these rules pose an adverse impact on such protected rights, they would need be outweighed by legitimate justifications.  Such rules include:

  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment
  • Broad confidentiality rules concerning “employer business” or “employee information” as opposed to confidentiality rules concerning customer or proprietary information, or directed at employee wages, terms of employment, or working conditions
  • Rules regarding disparagement or criticism of the employer
  • Rules regulating use of the employer’s name, as opposed to employer’s logo or trademark
  • Rules generally restricting speaking to the media or third parties, as opposed to speaking to the media on the employer’s behalf
  • Rules banning off-duty conduct that might harm the employer
  • Rules against making false or inaccurate statements, as opposed to rules against making defamatory statements

The General Counsel advised the regional officials to submit all Category 2 rules to the Office of the General Counsel for evaluation.

Category 3 Rules: Presumptively Unlawful

The Memorandum specified two types of workplace rules that are presumptively unlawful as they would be likely to impede employees’ NLRA-protected conduct:

  • confidentiality rules specifically regarding wages, benefits, or working conditions; and
  • rules against joining outside organizations or voting on matters concerning the employer.

The General Counsel has deemed these rules as having a serious adverse impact on central NLRA rights of employees to contact one another regarding working conditions and employment disputes, and joining unions.

Takeaway for Employers

The guidance provided in the Memorandum recognizes that the Boeing decision represented a major shift in labor policy, one that recognizes legitimate employer concerns over interpretation of routine handbook provisions.  Many workplace rules that were previously deemed presumptively unlawful are now permitted.  Employers should consider revising their current policies in light of the new standard. 

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