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.
F. Rules against Defamation or Misrepresentation
Rules prohibiting defamation or misrepresentation should be placed in Category 1. For example:
- 'Misrepresenting the company’s products or services or its employees' is prohibited.
- Do not email messages that are defamatory.
G. Rules against Using Employer Logos or Intellectual Property
Traditional rules prohibiting employee use of employer logos and trademarks also belong in Category 1. Examples:
- Employees are forbidden from using the Company’s logos for any reason.
- 'Do not use any Company logo, trademark, or graphic [without] prior written approval.'
H. Rules Requiring Authorization to Speak for Company
Rules requiring authorization to speak for the company or requiring that only certain persons speak for the company fall into Category 1. Examples of such rules are:
- The company will respond to media requests for the company’s position only through the designated spokespersons.
- Employees are not authorized to comment for the Employer.
I. Rules Banning Disloyalty. Nepotism, or Self-Enrichment
Rules banning these types of conflicts of interest have generally been deemed lawful, even prior to Boeing:
- 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.'
- Employees are banned from activities or investments . . . that compete with the Company, interferes with one’s judgment concerning the Company’s best interests, or exploits one’s position with the Company for personal gain.
Category 2: Rules Warranting Individualized Scrutiny
Rules in this 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.
According to Robb, in the absence of any Board jurisprudence applying Boeing to a Category 2 rule, Regions should submit all Category 2 rules to Advice.
Some possible examples of Category 2 rules are:
- 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.
- 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 (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.
Category 3: Rules that are Unlawful to Maintain
A. Confidentiality Rules Specifically Regarding Wages. Benefits, or Working Conditions
- Employees are prohibited from disclosing 'salaries, contents of employment contracts . . . .'
- Employees shall not disclose 'any information pertaining to the wages, commissions, performance, or identity of employees of the Employer.'
- In addition, rules that expressly prohibit discussion of working conditions or other terms of employment should be considered Category 3 rules, for substantially the same reasons.
- Employees are prohibited from disclosing to 'any media source' information 'regarding employment at [Employer], the workings and conditions of [Employer], or any . . . staff member.'
B. Rules Against Joining Outside Organizations or Voting on Matters Concerning Employer
Rules regulating membership in outside organizations cover some unprotected activity, but also clearly encompass protected activity. A core aspect of protected concerted activity under the NLRA is that employees may desire to have “outside organizations,” specifically unions, represent them.
Bans or other limitations on membership in, or work for, outside organizations that would be interpreted as covering unions will have a significant impact on core rights under the Act.