National Labor Relations Boards General Counsel Issues Guidance On
Employer Handbook Rules
On June 6, 2018, the National Labor Relations Board General Counsel issued GC Memorandum 18-04, Guidance on Handbook Rules Post-Boeing. In the Memorandum, the General Counsel analyzes various common work rules and employment policies to determine if they violate the National Labor Relations Act under the Board’s recent employer-friendly holding in The Boeing Company, 365 NLRB No. 154 (2017). Employers should review and revise their employee handbooks and policies to ensure compliance with the GC’s guidance and take advantage of the Boeing ruling.
In The Boeing Company decision, the Board announced a new standard for analyzing whether a work rule violates employees’ rights under the NLRA. The new standard focuses on the balance between the rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline and productivity in their workplace.
In Boeing, the Board delineated three categories of employment policies, rules and handbook provisions:
Category 1 includes rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
Category 2 includes rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with Act rights, and if so, whether any adverse impact on Act- protected conduct is outweighed by legitimate justifications.
Category 3 includes rules that the Board will designate as unlawful to maintain because they would prohibit or limit Act-protected conduct, and the adverse impact on Act rights is not outweighed by justifications associated with the rule.
In GC Memorandum 18-04, the General Counsel analyzes common employer rules and provides guidance to the regional directors regarding the placement of the rules into the three categories.
Category 1 rules are generally lawful and regional directors should dismiss the charge absent withdrawal.
Category 1 are permissible rules as they cannot reasonably be interpreted as violating an employees’ right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purposes of collectively bargaining, and include:
• Civility Rules. “Behavior that is rude, condescending or otherwise socially unacceptable is prohibited” is an example of a lawful civility rule.
• No Photography Or Recording Rules. “The use of cameras or other recording devices is prohibited” is an example of a lawful rule.
• Insubordination Rules. “Being uncooperative with supervisors . . . or otherwise engaging in conduct that does not support the Employer’s goals and objectives is prohibited” is an example of a lawful insubordination rule.
• Disruptive Behavior Rules. “Creating a disturbance on Company premises or creating discord with clients or fellow employees” is an example of a lawful disruptive behavior rule.
However, employers must exercise care using disruptive behavior rules to discipline employees for strikes or walkouts.
• Confidentiality Rules. Rules banning the discussion of confidential, proprietary, or customer information that make no mention of employee or wage information are generally lawful. “Do not disclose confidential financial data, or other non-public proprietary company information” is an examples of a lawful rule.
• Rules Against Defamation or Misrepresentation. “Misrepresenting the company’s products or services or its employees is prohibited” is a lawful rule.
• Rules Against Using Employer Logos Or Intellectual Property. “Employees are forbidden from using the Company’s logos for any reason” is an example of a lawful rule.
• Rules Requiring Authorization To Speak For The Company. “The company will respond to media requests for the company’s position only through the designated spokespersons” is an example of a lawful rule.
• Disloyalty, Nepotism Or Self-Enrichment Rules. “Employees may not engage in conduct that is disloyal . . . competitive, or damaging to the company such as illegal acts in restraint of trade or employment with another employer” is an example of a lawful rule.
Category 2 rules require an evaluation of the rule in question on a case by case bases using the Boeing standard, and include:
• Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union.
• Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information, or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions).
• Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees).
• Rules regulating use of the employer’s name (as opposed to rules regulating the employer’s logo/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) or rules specifically banning participation in outside organizations.
• Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements.
Category 3 rules are unlawful to maintain. They include:
• Confidentiality Rules Specifically Regarding Wages, Benefits, or Working Conditions. For example a rule stating employees are prohibited from disclosing salaries or the contents of employment contracts is unlawful.
• Rules against joining outside organizations or voting on matters concerning employer are unlawful.
• The Memorandum also notes that “rules that specifically ban protected concerted activity, or that are promulgated directly in response to organizing or other protected concerted activity, remain unlawful.
• Moreover, the Board held that the application of a facially neutral rule against employees engaged in protected concerted activity is still unlawful.” LW
This GC Memorandum is the first guidance employers have had since The Boeing Company decision. Employers should review and revise their employee handbooks and policies to ensure compliance with the GC’s guidance and take advantage of the Boeing ruling and ensure they are supported by the Boeing standard. This will help avoid unfair labor practice charges and ensure that the employer’s rules are enforceable.