By Robert J. Reinertson
June 21, 2018
The National Labor Relations Board (NLRB) is continuing to expand on its newfound flexibility toward employee handbook rules. The NLRB’s General Counsel, Peter Robb, recently issued a memo defining in greater detail which types of handbook rules are acceptable and which will merit greater scrutiny. Significantly, the memo instructs NLRB regional offices that ambiguities in handbook rules can no longer be interpreted against the employer.
The NLRB’s decision in The Boeing Company in December 2017 announced new looser standards for evaluating the legality of handbook rules, with an eye toward striking a proper balance between business justification and employee rights to engage in concerted labor activity. The General Counsel memo now expands upon the three categories of handbook provisions which the NLRB established in that case:
Category 1: Rules that are Generally Lawful.
The General Counsel says that these types of rules are considered to be legitimate because they will generally not interfere with employee rights to engage in concerted labor activity. These include:
- Civility rules, including prohibitions on rude, condescending or socially unacceptable behavior and negative or disparaging comments about employees or customers. The memo states that this type of rule advances employer and employee interests in maintaining a workplace free of unlawful harassment, preventing violence, and toxic work environments.
- No-photography and no-recording rules, which limit recording and photography on employer property out of concerns for security and protection of proprietary, confidential, and customer information. (However, a ban on “mere possession” of cell phones at work may be unlawful where employees’ main method of communication during the work day is by cell phone.)
- Insubordination rules, which include rules prohibiting unlawful or improper conduct, uncooperative behavior, and refusal to comply with orders or to perform work.
- Disruptive behavior rules, which include rules against boisterous conduct, creating disturbances, creating discord with customers or fellow employees, and violent and dangerous behavior.
- Rules protecting confidential, proprietary, and customer information.
- Rules against defaming or misrepresenting company products, services, or employees, and defamatory communications.
- Rules against using employer logos or intellectual property.
- Rules requiring authorization to speak on behalf of the company.
- Rules banning disloyalty, nepotism, or self-enrichment, such as prohibitions on competing with the employer, being employed elsewhere, or exploiting the employee’s position for personal gain.
Category 2: Rules Warranting Individualized Scrutiny.
This category includes rules that are not obviously lawful or unlawful, and which must be evaluated on a case-by-case basis. The standard for analysis is whether the employer’s particular business interest in having the rule outweighs the impact on employees’ rights to engage in concerted activity. Some examples of rules in this category are:
- Broad conflict of interest rules that do not specifically prohibit fraud and self-enrichment and do not restrict membership in or voting for a union.
- Rules against disparagement of the employer, as opposed to civility rules regarding disparagement of employees.
- Rules banning off-duty conduct that might harm the employer, as opposed to conduct at work.
- Rules regulating use of the employer’s name, as opposed to rules against use of the employer’s logo or trademark.
Category 3: Rules are Usually Unlawful.
This category includes rules that are generally not permitted because they limit or prohibit employee conduct that is protected under the National Labor Relations Act. The memo advises that regional offices should issue complaints against employers with these types of rules, unless a settlement can be reached. Examples of these types of rules are:
- Rules prohibiting employees from disclosing salaries or wages or the contents of employment contracts, rules against disclosing information on performance or identity of employees, and rules that prohibit discussion of working conditions or other terms of employment.
- Rules against joining outside organizations or voting on matters concerning the employer, which could be interpreted as banning membership in a union.
The General Counsel memo is welcome news for employers, both union and non-union. The memo provides needed clarity for drafting handbook rules and recognizes that many rules that most would consider to be common sense are indeed legitimate.
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