As Constangy has previously reported, on June 6, NLRB General Counsel Peter Robb issued a Guidance Memorandum summarizing how the Regional Offices would interpret employer rules and policies when considering unfair labor practice charges of interference. In its recent Boeing decision, the Board majority laid out a new standard for determining whether an employer rule or policy interfered with employees’ Section 7 rights. The General Counsel’s memorandum provides examples of rules and polices that are lawful and directs Regional Offices that they should no longer interpret ambiguous policies and rules against the interest of the drafting employer and those with generalized coverage as banning all activity that could conceivably be included within the applicable rules. The guidance provides that Regional Offices are to evaluate whether a rule “would be” interpreted as prohibiting and thus interfering with Section 7 activity, instead of the former standard, which found that a rule or policy would be unlawful if it “could be” interpreted as interfering.

The NLRB in Boeing reexamined the standard for determining whether an employer rule or policy violates the National Labor Relations Act. The new standard balances the restrictive effect on employees’ Section 7 rights against the employer’s legitimate right to maintain workplace discipline and productivity. Under the new standard, employer rules and policies are grouped into three categories: (1) those that are generally lawful; (2) those that warrant individualized scrutiny; and (3) those that are plainly unlawful. The General Counsel’s memorandum, largely tracking the Boeing decision, puts some common employer rules and policies into the groups.

Category 1:  Rules or policies that are generally lawful because, when interpreted reasonably, they do not prohibit or interfere with the exercise of Section 7 rights, or because the business justifications for the rule outweigh the potential adverse effect on Section 7 rights. Examples of rules and policies in this category include the following:

  • Civility policies (for example, no disparaging of co-workers, no offensive language)
  • No-photography, no-recording rules
  • Rules proscribing disruptive behavior (for example, “creating a disturbance on company premises or creating discord with clients or fellow employees is prohibited”)
  • Policies for protection of confidential, proprietary, or customer information
  • Rules prohibiting defamation or misrepresentation
  • Rules prohibiting use of company logos or other intellectual property
  • Policies requiring prior authorization to speak on behalf of the employer
  • Policies requiring loyalty and prohibiting self-enrichment.

Category 2: Rules and policies that are not plainly lawful or unlawful will need to be evaluated to determine whether they would interfere with Section 7 rights, and if so, whether the adverse impact, if any, on those rights is outweighed by legitimate employer interests. Examples of such rules and policies include the following:

  • Broad conflict-of-interest policies not specifically targeting fraud and self-enrichment, and not expressly restricting membership in, or voting for, a union
  • Confidentiality policies broadly including employer business or employee information
  • Policies concerning disparagement or criticism directed at the employer
  • Policies on use of the employer’s name
  • Policies restricting media or third party contact
  • Policies restricting off-duty conduct potentially detrimental to the employer
  • Policies prohibiting false statements.

Category 3: Rules and policies that are generally unlawful because they would prohibit or limit protected concerted activity with adverse impact on Section 7 rights outweighing the employer interest for having the rule or policy, including the following:

  • Confidentiality rules or policies regarding information on wages, benefits, or working conditions
  • Rules or policies restricting membership in outside organizations.

The General Counsel Memorandum limits some of the uncertainty that employers face in adopting or enforcing workplace rules and policies, and should help employers to promote safe, civil, and productive workplaces that benefit the vast majority of employees.