Over the past several years, we have written about National Labor Relations Board (“NLRB”) decisions invalidating various policies in employee handbooks, even though the employers in those situations did not have unionized workplaces. The NLRB is the federal agency that enforces the National Labor Relations Act (“NLRA”). New guidance from the NLRB provides welcome relief for employers.
On June 6, 2018, The NLRB’s General Counsel issued new guidance on employee handbook rules that rolls back some of the previous, restrictive decisions. The guidance is a follow-up to the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), in which the NLRB reassessed its standard for when the mere maintenance of a work rule violates Section 8(a)(1) of the NLRA. The NLRB established a new standard that focused on the balance between a rule’s negative impact on employees’ ability to exercise their Section 7 rights and a rule’s connection to employers’ rights to maintain discipline and productivity in their workplaces. The NLRB severely criticized prohibiting any rule that could be interpreted as covering Section 7 activity, as opposed to only prohibiting rules that would be so interpreted. Under the new guidance, ambiguities in rules are no longer interpreted against the drafter (employer), and generalized provisions should not be interpreted as banning all activity that could conceivably be included. The new guidance divides workplace rules into three categories:
Category 1: Rules that are Generally Lawful to Maintain: The rules in this category are generally allowed. NLRB Charge allegations alleging rules in this category are facially unlawful and should, therefore, be dismissed. These rules include, but are not limited to:
- Civility Rules, including “policies prohibiting behavior that is rude, condescending or otherwise socially unacceptable,” “employees may not make negative or disparaging comments about co-workers or clients,” “rude, discourteous, or un-businesslike behavior is forbidden,” “disparaging or offensive language is prohibited,” “employees may not post any statements, photographs, video or audio that could be reasonably viewed as disparaging to other employees.”
- No-Photography and No-Recording Rules, including, “employees may not record conversations, phone calls, images, or company meetings without approval”, “employees may not record telephone or other conversations with co-workers, managers, or third parties without approval.” Employers have a legitimate and substantial interest in limiting recording and photography on their property. This interest may involve security concerns, protection of property, protection of proprietary, confidential, and customer information, avoiding legal liability, and maintaining the integrity of operations. NOTE: A ban on mere possession of cell phones at work may be unlawful where the employees’ main method of communication during the work day is by cell phone.
- Rules Against Insubordination, Non-cooperation, or On-the-job Conduct that Adversely Affects Operations, including “being uncooperative with supervisors or otherwise engaging in conduct that does not support the company’s goals and objectives,” and “insubordination or refusal to cooperate with co-workers.”
- Disruptive Behavior Rules, including those prohibiting “boisterous and other disruptive conduct,” “creating a disturbance on company premises or damaging relationships with clients or co-workers,” and “disorderly conduct on company premises or during work hours.”
- Rules Protecting Confidential, Proprietary, and Customer Information or Documents, including “information concerning customers shall not be disclosed directly or indirectly or used in any way,” “ do not disclose financial data or other non-public proprietary company information and do not share confidential information regarding partners, vendors, or customers,” “divulging private information to third parties is prohibited,” and “no unauthorized disclosure of business secrets or other confidential information.”
- Rules Against Defamation or Misrepresentation, including “misrepresenting the company’s products or services or employees is prohibited,” and “do not email messages that are defamatory.”
- Rules against Using Employer Logos or Intellectual Property, including “employees are prohibited from using the company’s logos for any reason,” and “do not use any company logo, trademark, or graphic without prior written approval.”
- Rules Requiring Authorization to Speak for the Company, including “the company will respond to media requests for the company’s position only through its designated spokespersons,” and “employees are not authorized to comment for the company.”
- Rules Banning Disloyalty, Nepotism, or Self-Enrichment, including “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,” and “employees are banned from activities or investments that compete with the company, interfere with one’s judgment concerning the company’s best interests, or exploit one’s position with the company for personal gain.”
All of the policy language quoted in A. through I. above was problematic under previous NLRB guidance but is now permissible.
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 they would interfere with NLRA rights, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications. This requires analysis of context including the type of workplace, placement of the challenged rule among other rules, and examples of conduct provided in the rule.
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 (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 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; and rules against making false or inaccurate statements as opposed to rules against making defamatory statements.
Category 3: Rules that are Unlawful to Maintain. These rules are almost always unlawful because they prohibit or limit NLRA-protected conduct, and the adverse impact on employees’ NLRA rights outweighs any justifications associated with such rules. These include any rules prohibiting employees from discussing wages or benefits with each other and any rules prohibiting discussion of working conditions. They also include any rules against joining outside organizations or voting on matters concerning the employer.
This new NLRB guidance is great news for employers who had to dramatically change their long-standing workplace policies to comply with increasingly restrictive NLRB opinions and guidance documents. We will keep you updated on future development in this area, and please consult qualified employment counsel for any questions about whether particular policies comply with the NLRB’s positions.