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
- Disparaging, or offensive language is
- Employees may not post any statements,
photographs, video or audio that reasonably could be viewed as disparaging to
B. No-Photography Rules and No-Recording
The Board in Boeing
placed no-photography rules in Category 1. The specific rule at issue there
- “[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
- 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. LiedHoward & Howard Attorneys PLLCOne Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602(309) 999-6311MLied@howardandhoward.com