Recent guidance issued by the NLRB General Counsel Peter Robb, the NLRB’s chief prosecutor, is a continuing testament to the NLRB’s impact on the changing legal landscape regarding workplace rules. On June 6, 2018, Peter Robb issued a 20-page Memorandum to the NLRB Regional Offices titled “Guidance on Handbook Rules Post-Boeing.”
This guidance comes in the wake of the NLRB’s December 2017 decision in Boeing to overrule Lutheran Heritage Village-Livonia, which articulated the Board’s previous standard governing whether facially neutral workplace rules, policies, and employee handbook provisions unlawfully interfered with an employee’s exercise of their NLRA Section 7 rights. Boeing provided a new standard for evaluating the legality of workplace rules.
Under Boeing, workplace rules are grouped into three categories:
Rules that are generally lawful to maintain.
Rules warranting individualized scrutiny.
Rules that are presumed unlawful to maintain.
The General Counsel’s Memorandum offers additional clarity to NLRB Regional Offices evaluating claims of improper employment policies brought against employer workplace rules post-Lutheran Heritage. The Memo leads by example, articulating the types of work rules that would be expected to fall under each category.
Category 1 rules — generally presumed lawful because, when interpreted, they do not prohibit or interfere with an employee’s NLRA rights, or the potential adverse impact is outweighed by business justifications. Examples include:
- Civility rules; no-photography and no-recording rules; rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; disruptive behavior rules; rules protecting confidential, proprietary, and customer information or documents; rules prohibiting defamation or misrepresentation; rules prohibiting use of employer logos or intellectual property; rules requiring authorization to speak for the company; rules banning disloyalty, nepotism, or self-enrichment.
Category 2 rules — warrant individualized scrutiny because of their potential adverse impact on NLRA rights. The legality of such rules is evaluated on a case-by-case basis. Examples include:
- 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 rules regarding customer or proprietary information; rules concerning disparagement or criticism of the employer, as opposed to civility rules regulating the disparagement of employees; rules regulating the use of the employer’s name, as opposed to the logo or trademark; rules generally restricting speaking to the media or third parties as opposed to speaking 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; rules against making false statements, as opposed to rules against making defamatory statements.
Category 3 rules — generally presumed unlawful because their potential to interfere with the exercise of protected rights outweighs possible justifications. Examples include:
- Confidentiality rules regarding wages, benefits, or other working conditions; rules that prohibit joining outside organizations or voting on matters concerning the employer.
Impact on Employers
Following Boeing, the NLRB’s Memo provides further guidance regarding a way forward for employers adopting generalized work rules and provisions in handbooks. This guidance provides useful clarity and specific examples, offering employers additional transparency regarding how the NLRB may approach an employer’s interpretation of a work rule. Practically, under this guidance, it will generally be less difficult for an employer to discipline or terminate an employee for having compromised an employer’s legitimate business interests. However, this guidance does not allow employers take such actions carte blanche. Employers are encouraged to consult legal counsel before terminating employees based on social media posts or workplace behavior. Employer should also review their handbooks and work rules in light of the specific examples mentioned in the memo.