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NLRB General Counsel Issues New Guidance Concerning Employer Handbook Rules

Labor & Employment Publications

Last week, the National Labor Relations Board’s General Counsel issued a memorandum to NLRB regional offices interpreting the Board’s recent Boeing decision. In Boeing, the Board overturned that part of its Lutheran Heritagetest pursuant to which the Board invalidated facially-neutral work rules if they could be interpreted to limit an employee’s right to engage in protected concerted activity. In Boeing, the Board, by way of a newly-announced balancing test, shifted the focus to prohibiting only those rules that, when reasonably interpreted, would interfere with protected concerted activity. This new balancing test weighs the impact of a facially-neutral rule on employee rights versus employer interests in, for example, safety, productivity, or discipline. The Board further explained in Boeing that, over time, the application of its new test would yield three categories of rules, the goal of which is to provide employers, employees, and unions with guidance regarding their rights and responsibilities under federal labor law. The General Counsel’s memorandum provides the following additional guidance concerning the Boeingcategories:

Category 1: Rules that are Generally Lawful to Maintain

Employer rules that fall into this category generally do not impact protected activity, and to the extent, they do impact only peripheral protected activity. The General Counsel also determined that, for many rules in this category, even if they impacted truly protected activity, the rules would not discourage employees from engaging in such activity. In its memorandum, the General Counsel identified the following employer handbook rules as Category 1 rules:

  • Civility Rules
  • No-photography/No-recording Rules
  • Rules against insubordination, non-competition, or on-the-job conduct that adversely affects operations
  • Disruptive Behavior Rules
  • 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 the employer’s behalf
  • Rules banning disloyalty, nepotism, or self-enrichment

Category 2: Rules Warranting Individualized Scrutiny 

According to the General Counsel, rules that are “not obviously lawful or unlawful” must be “evaluated on a case-by-case basis to determine whether the[y]. . . would interfere with rights guaranteed by the [Act]” and whether such interference, if any, is outweighed by legitimate justifications permitting the rule to remain. The following are considered Category 2 rules:

  • 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 “employer information” (as opposed to rules prohibiting the use of customer information or proprietary information as noted above)
  • Rules relating to an employee’s use of the employer’s name (as opposed to using of the employer’s logo/trademark)
  • Rules generally restricting to the media or third parties (as opposed to prohibiting speaking on behalf of the employer)
  • Rules banning off-duty conduct that might harm the employer (as opposed to an activity that causes a disruption in the workplace)
  • Rules against making false or inaccurate statements (as opposed to making defamatory statements)

Category 3: Rules that are Unlawful to Maintain

Currently, two types of rules fall into Category 3: (1) confidentiality rules specifically regarding wages, benefits, or working conditions; or (2) rules against joining outside organizations or voting on matters concerning the employer. These types of rules, the General Counsel explained, are central to employees’ Section 7 rights and are not outweighed by legitimate employer justifications.

As we discussed in an earlier alert, and following the General Counsel’s Boeing memo, the takeaway for employers is that their interests will carry more weight than they did under the discarded Lutheran Heritage test. We caution, however, that the Boeing categories are guides; they do not establish that, for example, every “no photography” rule in every case is lawful. Employers must evaluate the specific language of their rules, the particular interests at stake, and employee rights through the prism of the Boeing balancing test. Also, the Boeing test is designed to evaluate the maintenance of facially-neutral rule and policies. Even if lawfully maintained under Boeing, a rule that is inconsistently applied may interfere with employee rights.

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