On June 6, 2018, NLRB General Counsel Peter Robb issued a lengthy 20-page Memorandum (GC 18-04) providing detailed guidance regarding enforcement of “Handbook Rules Post-Boeing.”
In The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the Board established a new standard governing the validity of employer rules, policies and handbook provisions under the National Labor Relations Act. The Board now considers whether a facially neutral rule, when reasonably interpreted, would interfere with rights under the Act. If so, it will strike a balance between (i) the nature and extent of the potential impact on employee rights; and (ii) legitimate justifications supporting maintenance of the rule. The Board no longer will find rules unlawful merely because they could be interpreted as covering potentially protected activities.
The Board also established categories of rules based upon the results of its balancing of interests: Category 1 rules are lawful because they do not restrict rights under the Act, or because the justifications for the rules outweigh their tendency to restrict those rights; Category 2 rules warrant individualized consideration of whether they prohibit or interfere with employee rights, and if so, whether the impact is outweighed by other, legitimate considerations; and Category 3 rules are unlawful because they would restrict rights protected by the Act in a way that outweighs justifications associated with them.
The Board’s categories will effectively delineate rules that are “in-bounds” or “out-of-bounds” for purposes of the Act. For instance, categorizing a workplace “no recording” rule as lawful under Category 1, as the Board did in The Boeing Co., facilitates prompt resolution (and dismissal) of charges challenging them. Employers can have increased confidence about adopting such a rule in the future. The categories will also assist employers in avoiding, or if necessary self-correcting, rules that are treated as unlawful under Category 3, or in customizing rules under Category 2 to maximize their value (and therefore their justifications).
Until all possible rules are categorized through the Board’s traditional case-by-case dispositions, the key questions will involve how to predict whether potential rules fall into Categories 1, 2 or 3. For now, the General Counsel’s recent Memorandum takes a big step toward explaining how the Board’s Regional offices will initially categorize many common workplace rules under the Board’s new standard as a matter of enforcement policy.
Of greatest interest to employers, the Memorandum is full of helpful illustrations of the policies that it categorizes. For instance, it provides several examples of the no recording and civility rules that the Board endorsed as lawful in The Boeing Co. It proceeds to categorize a number of other common workplace rules as lawful under Category 1, and provides illustrations of such rules. These include rules pertaining to:
- insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
- disruptive behavior;
- protection of confidential, proprietary and customer information or documents;
- prohibiting defamation or misrepresentation;
- restricting use of the employer’s logos or other intellectual property;
- requiring authorization to speak for the employer; and
- banning disloyalty, nepotism or self-enrichment.
The Memorandum also provides as illustrations of generally unlawful rules falling within Category 3, confidentiality rules that restrict discussing wages, benefits or working conditions, and rules against joining outside organizations or voting on matters concerning the employer. A short section of the Memorandum identifies a few rules warranting individualized scrutiny under Category 2.
The General Counsel’s recent Memorandum increases confidence that many workplace policies previously ruled invalid will not be challenged under the Board’s new legal standard. While wide-ranging in the scope of rules it considers, the Memorandum is not comprehensive, and a number of blanks remain to be filled in. Areas not addressed include how the General Counsel and the Board will categorize rules prohibiting harassment as a general matter, requiring participation in workplace investigations, treating arbitration proceedings as confidential, and restricting access to the employer’s email system for non-business uses. Guidance about the use of disclaimers to support lawful rules following The Boeing Co. also would be valuable.
Employers should avoid over-reliance on categorizations of rules. Remember that the reach of The Boeing Co.’s new standard is limited to the maintenance of workplace rules. Application of rules, even lawful rules, in a manner that interferes with employee rights, will continue to be found unlawful by the Board. Effective rules should be drafted with enough specificity so that they can be applied easily and consistently in a lawful manner.