By Nelson Cary and Ashley Manfull
Last December, the NLRB recently established a new standard for determining the lawfulness of facially neutral employee handbook policies that “may” restrict the exercise of an employee’s NLRA rights. As more fully discussed in our prior post, in Boeing Company the NLRB rejected its previous standard for reviewing employer rules and replaced it with a balancing test. The NLRB also established three different categories of rules that it would examine in future decisions. In creating the categories, however, the NLRB gave few examples of the types of rules that may fall into each category.
To provide clarity on the new standard, NLRB General Counsel Peter Robb (R) has now issued a 20-page Guidance on Handbook Rulings Post-Boeing. In an overall victory for employers, the GC emphasizes that post-Boeing, ambiguities in employer work rules and handbook policies will no longer be interpreted against employers. Instead of analyzing whether a work rule could be interpreted as restricting employee NLRA rights, the new standard will only prohibit work rules that would be so interpreted.
Examples Of Category 1 Rules Deemed Lawful
In the Guidance, the GC provides multiple examples of rules said to fall into Category 1. Importantly, many of these common work rules previously had come under intense scrutiny by the Obama NLRB as potentially “chilling” employee NLRA rights. Now, the GC has directed NLRB regional offices not to issue ULP complaints for rules such as:
- General civility rules prohibiting conduct that impedes harmonious interactions and relationships, is rude, or condescending, or disparages the company’s employees;
- Rules that prohibit employees from recording conversations, phone calls, images, or company meetings without prior company approval;
- Rules against insubordination, non-cooperation, or engaging in conduct that does not support the employer’s goals and objectives;
- Rules prohibiting disorderly conduct on employer premises or during working hours or creating discord with clients and fellow employees; and
- Rules protecting the confidentiality of proprietary and customer information and documents.
The GC provides many other examples, but essentially reasons in each example that these Category 1 rules largely have no implication on employee NLRA rights. Therefore, given the employer’s substantial legitimate interests at stake, these rules would not chill employees from engaging in protected activity under the NLRA. (However, it is important to note that while the employer is permitted to maintain Category 1 rules, the rules still may not be applied to restrict employee exercise of NLRA rights.)
Those with a particular interest in this area should review the memorandum in detail. It contains many examples and specific language for these rules.
Examples of Category 2 Rules Requiring Further Scrutiny
The GC also provides examples of Category 2 and Category 3 work rules. With respect to Category 2 rules that require further individual scrutiny based on context, the Guidance identifies a number of possible rules, including these examples:
- Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment or appear to restrict membership in a union;
- Broad confidentiality rules prohibiting disclosure of “employer business” or “employee information”;
- Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees); and
- Rules restricting use of the employer’s name.
Examples of Category 3 Rules Deemed Unlawful
Finally, the GC identifies some examples of Category 3 rules that are unlawful because the adverse impact on employee NLRA rights outweighs any business justifications associated with the work rules, including the following:
- Confidentiality rules specifically pertaining to disclosure of employee wages, benefits, or working conditions; and
- Rules prohibiting employees from joining outside organizations (such as a union) or voting on matters concerning the employer.
For the labor professional, the GC’s memorandum is welcome relief when it comes to drafting rules of conduct for an employer. Clearly, the GC, the chief “prosecutor” of unfair labor practice allegations, fully intends to implement the NLRB’s Boeing decision and continue the trend towards a more common-sense approach to employee work rules. Employers can now have greater confidence in adopting work rules that reasonably control employee conduct issues which are not meant to restrict employee NLRA rights.
Until we see more NLRB decisions applying its new test, however, it remains advisable to carefully review and vet employee handbook or policy manual language before implementation. Context, the specific language chosen, and the employer’s interests (which can vary depending on industry as well) will remain important to the evaluation of employer rules. Moreover, the GC specifically notes that some employer rules in areas where the NLRB has well-established standards, such as on solicitation/distribution rules, no-access rules, and on employee apparel rules, remain subject to those well-established standards. In those areas, the NLRB has already struck the appropriate balance between employer and employee rights.