Once upon a time, not so very long ago, employment lawyers like myself were warning our clients about certain policies and workplace rules that, despite being once considered common-sensical, had become potentially worrisome. Policies such as “Employees are not allowed take pictures or videos at our refinery”; “Do not disclose confidential financial data or other non-public proprietary information”; and “Employees may not make negative or disparaging comments about fellow workers” had suddenly become problematic because an employee might reasonably construe the rule to prohibit activities protected under the National Labor Relations Act.
But it might be time to reevaluate our stance on such policies in light of recent developments. In December 2017, the National Labor Relations Board abandoned the “reasonably construed” test in favor of a test that balanced the nature and extent of potential impact on NLRA rights and legitimate justifications of the policy or work rule. The Board found that the Boeing Company’s rule prohibiting photographs or videos without permission did not interfere with protected rights because its adverse impact on Section 7 rights was comparatively slight and outweighed by substantial and important justifications associated with the no-camera rule.
On June 6, 2018, the NLRB’s Office of the General Counsel offered additional helpful guidance on handbook rules in a post-Boeing world and identified previously problematic rules that it now considers presumptively valid absent special circumstances. Notably, it identified as presumptively valid rules governing civility in the workplace (e.g., “don’t disparage your coworkers”); prohibitions on photographing or recording, against insubordination and non-cooperation; prohibiting disruptive behavior, against defamation or misrepresentation, against using employer logos; and requiring authorization to speak for the company. (Importantly, the General Counsel noted that confidentiality rules regarding wages, benefits and working conditions are still unlawful.)
If your company was one of the many companies that removed such rules in the last decade, you may want to talk to your labor counsel about whether some of these very reasonable rules can be reincorporated into your employee handbook.