The pendulum swings. Employers no doubt recall the angst created by the NLRB in recent years with respect to employment policies and work rules—starting back with the 2004 Lutheran Heritage Village-Livonia decision that resulted in many common-sense employer work rules being held to be unlawful restriction of employee Section 7 rights under the Labor Relations Act. With a new administration comes new Board members, and in December 2017 the “Trump Era” Board issued its decision in The Boeing Company—establishing a new, more employer-friendly standard for evaluation of employer work rules. Under Boeing, the Board divided rules into three categories:
- Category 1: rules the Board designates as lawful to maintain;
- Category 2: rules that warrant individualized scrutiny to determine whether the rule would prohibit or interfere with NLRA rights; and
- Category 3: rules the Board will designate as unlawful to maintain because they would prohibit or limit NLRA protected conduct.
In Boeing, the Board concluded that Boeing’s no-camera rule that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit was lawful, holding that the impact on employee’s potential exercise of NLRA rights was comparatively slight and outweighed by important justifications, including national security concerns. Fortunately, employers do not need to wait for further decisions for guidance on how the Boeing principles will be applied.
On June 6, 2018, Peter Robb, General Counsel for the NLRB issued General Counsel Memorandum 18-04 “Guidance on Handbook Rules Post-Boeing” to provide specific guidance and direction to the 26 regional offices of the NLRB. The Guidance directs the Regions that they 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.” In other words, the NLRB will be returning to a more common-sense and employer-friendly interpretation of employer work rules and policies. Employers should be aware, however, that even this more relaxed interpretation has significant nuances, and an employer should always consider what legitimate business purpose is served by each rule.
Notably, the GC Memo gives considerable cover for “Category 1” rules as “generally lawful.” This category includes:
- Civility Rules-rules that prohibit rude, discourteous, disparaging, condescending, or socially unacceptable behavior;
- No Photography/No Recording Rules-rules that prohibit photography in the workplace and forbid recording conversations, meetings and phone calls with co-workers, supervisors, or third parties unless approved in advance;
- Rules Against Insubordination Non-Cooperation, or On-the-Job Conduct that Adversely Affects Operations;
- Disruptive Behavior-such as boisterous or other disruptive behavior;
- Rules Protecting Confidential, Proprietary and Customer Information or Documents;
- Rules Against Use of Employer Logos and Intellectual Property;
- Rules Requiring Authorization to Speak on Behalf of Company;
- Rules Banning Disloyalty, Nepotism, or Self-Enrichment.
Note, however, that even “generally lawful” rules need a legitimate business purpose and can stray into protected areas if not drafted with care.
“Category 2” rules (“rules warranting individual scrutiny”) are the most problematic—these require an individualized assessment, and likely a more compelling business justification. These include:
- Confidentiality rules broadly encompassing “employer business” or employee information, as opposed to confidentiality rules regarding customer or proprietary information;
- Rules regarding disparagement or criticism of the employer, as opposed to civility rules regarding disparagement of employees;
- Rules restricting rights to speak to media or third parties, as opposed to rules restricting rights to speak to media on employer’s behalf;
- Rules banning off-duty behavior that might harm the employer, as opposed to rules that ban insubordinate or disruptive behavior at work;
- Rules against making false or inaccurate statements as opposed to rules against making defamatory statements.
Any rule that you may be considering that encompasses these subjects needs careful analysis.
Finally, the GC Memo gives us a short list of rules that are unlawful to maintain:
- Confidentiality rules specifically regarding wages, benefits or working conditions; and
- Rules against joining outside organizations or voting on matters concerning the employer.
Every policy you create should be measured against the foregoing, and state law considerations may apply. Policies should be regularly reviewed after each legislative cycle—and as the pendulum swings following changes in national administrations.