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NLRB Trims Scrutiny of Employee Handbook Rules (Wednesday, June 27, 2018)

In MEMORANDUM GC 18-04, issued June 6, 2018, Peter B. Robb, General Counsel of the National Labor Relations Board, relaxed somewhat the NLRB’s sometimes nitpicking scrutiny of employee handbook policies.

The memo explained that in its decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the Board reassessed its standard for when the mere maintenance of a work rule violates Section 8(a)(1) of the Act. The Board established a new standard that focused 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 severely criticized a case called Lutheran Heritage and its progeny for prohibiting any rule that could be interpreted as covering Section 7 activity, as opposed to only prohibiting rules that would be so interpreted. According to Robb, NLRB Regions should now note that ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.

Category 1: Rules that are Generally Lawful to Maintain

The types of rules in Category 1 are generally lawful, either because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of rights guaranteed by the Act, or because the potential adverse impact on protected rights is outweighed by the business justifications associated with the rule.

A. Civility Rules

The Board has placed this type of rule in Category 1. The following examples were the civility rules at issue in William Beaumont Hospital that were incorporated by reference in Boeing:

  • “Conduct. . . that is inappropriate or detrimental to patient care of [sic] Hospital operation or that impedes harmonious interactions and relationships will not be tolerated.”
  • “Behavior that is rude, condescending or otherwise socially unacceptable” is prohibited.
  • Employees may not make “negative or disparaging comments about the . . . professional capabilities of an employee or physician to employees, physicians, patients, or visitors.”
  • In addition, the following examples should be considered lawful civility-type rules:
  • “Disparaging . . . the company’s . . . employees” is prohibited.
  • Rude, discourteous or unbusinesslike behavior is forbidden.
  • Disparaging, or offensive language is prohibited.
  • Employees may not post any statements, photographs, video or audio that reasonably could be viewed as disparaging to employees.

B. No-Photography Rules and No-Recording Rules

The Board in Boeing placed no-photography rules in Category 1. The specific rule at issue there was:

  • “[U]se of [camera-enabled devices] to capture images or video is prohibited.”
  • No-recording rules should similarly fall in Category 1. Such rules include:
  • Employees may not “record conversations, phone calls, images or company meetings with any recording device” without prior approval.
  • Employees may not record telephone or other conversation they have with their coworker, managers or third parties unless such recordings are approved in advance.

C. Rules Against Insubordination, Non-cooperation, or On-the-job Conduct that Adversely Affects Operations

Examples of these Category 1 rules include:

  • “Being uncooperative with supervisors ... or otherwise engaging in conduct that does not support the [Employer’s] goals and objectives” is prohibited.
  • "Insubordination to a manager or lack of. . . cooperation with fellow employees or guests” is prohibited.

Note that rules that indicate that the employer could consider protected concerted activity to be a type of unsupportive conduct are in Category 2 below.

D. Disruptive Behavior Rules

Disruptive behavior rules are also common Category 1 rules in employee handbooks. Some examples of such rules are:

  • “Boisterous and other disruptive conduct.”
  • Creating a disturbance on Company premises or creating discord with clients or fellow employees.
  • Disorderly conduct on Hospital premises and/or during working hours for any reason is strictly prohibited.

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

Certain types of confidentiality rules also belong in Category 1, e.g., rules banning the discussion of confidential, proprietary, or customer information so long as they make no mention of employee or wage information. Examples include:

Employees do not have a right under the Act to disclose employee information obtained from unauthorized access/use of confidential records, or to remove records from the employer’s premises.

Michael R. Lied
Howard & Howard Attorneys PLLC
One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
(309) 999-6311