By: George E. Chamberlain IV
On June 6, 2018, following the NLRB’s decision on The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), NLRB General Counsel Peter Robb issued a Guidance Memorandum (18-04) on how NLRB Regional Offices should interpret workplace rules. Boeing’s new standard strikes a balance between an employers’ right to govern its workplace and an employees’ right to exercise their Section 7 rights. When determining if a workplace rule violates Section 7, Regions should look to whether the rule, when reasonably interpreted, would violate the rule. This new method of interpretation significantly altered the prior view prohibiting any rule that could violate Section 7.
The new test provides a more reasonable standard for employers to abide by and grants employers more leeway in maintaining discipline and productivity in their workplace. Notably, the Board in Boeing established three categories of employment policies, rules, and handbook provisions. Boeing, 365 NLRB No. 154, slip op. at *5 (Dec. 14, 2017).
The rules are classified as follows: (1) rules that are generally lawful to maintain, (2) rules warranting individualized scrutiny, and (3) rules that are unlawful to maintain. Furthermore, the Memorandum provided a non-exhaustive list of rules included in each category.
Category One: Rules that are Generally Lawful to Maintain
Rules under this category are generally lawful because they either do not prohibit or interfere with rights provided by the NLRA or because business justifications for the rule outweigh the potential adverse impact on an employee’s protected rights. Category One rules include:
- Civility rules (rules prohibiting inappropriate conduct or rude behavior);
- Rules prohibiting photography or other recordings;
- Rules prohibiting insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
- Rules prohibiting disruptive behavior;
- Rules protecting confidential, proprietary, and customer information or documents;
- Rules against defamation or misrepresentation;
- Rules against using employer logos or intellectual property;
- Rules requiring authorization to speak on behalf of the company; and
- Rules banning disloyalty, nepotism, or self-enrichment.
Category Two: Rules Warranting Individualized Scrutiny
Determining the legality of rules under this category will typically depend on the context of the activity they govern. In some circumstances, the rule “should be viewed as they would by employees who interpret work rules as they apply to the everydayness of the job.” Guidance Memorandum (18-04) at p.16. Other relevant considerations include the type and character of the workplace and evidence that the rule has actually caused employees to refrain from Section 7 activity. The Memorandum suggests that these rules should be submitted to Advice before an NLRB Region makes any determination of validity. Category Two rules include:
- Broad conflict-of-interest regulations 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 use of the employer’s logo/trademark);
- Rules generally restricting communications with the media or third parties (as opposed to rules restricting communications with 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); and
- Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).
Category Three: Rules that are Unlawful to Maintain
The last category contains rules that prohibit or limit rights guaranteed by the NLRA. Rules under Category Three are generally not supported by a legitimate justification. Category Three rules include:
- Confidentiality rules regarding wages, benefits, or working conditions; and
- Rules against joining outside organizations or voting on matters concerning the employer.
Guidance Memorandum (18-04) provides employers with greater clarity and leeway when drafting employment policies, rules, and handbook provisions. Practically speaking, employers now have more flexibility to craft workplace rules without fear of violating Section 7 rights. Going forward, employers should always consult the General Counsel’s Memorandum and their attorney when reviewing rules for compliance or when creating new rules governing the workplace.