Over the last several years, employers have been scratching their heads in response to the NLRB’s (National Labor Relations Board) crackdown on workplace rules contained in employee handbooks. Employment policies requiring individuals to be “respectful” and work “harmoniously” with one another, as well as prohibitions relating to “disparagement” have been struck down by the NLRB. The NLRB concluded that standards of conduct and civility rules may potentially infringe upon an employee’s right to engage in protected concerted activities under Section 7 of the National Labor Relations Act. In other words, such policies could have a chilling effect on employees and prevent them from complaining about their managers, wages, hours, working conditions or other terms and conditions of their employment. As a result, many employers have been scrambling in recent years to modify their handbook rules to avoid any language that may be deemed offensive by the NLRB.
The NLRB’s General Counsel, Peter Robb, has now weighed in on this issue in light of the Board’s recent decision in The Boeing Co. case. In June of this year, the General Counsel issued guidance to all NLRB Regional Directors adopting a new “employer-friendly” standard for reviewing handbook rules and policies. Under the new guidance, handbook rules and policies are subject to a balancing test that evaluates the interests of the employer in implementing and enforcing the workplace rule against the burden on the employee’s Section 7 rights. The General Counsel has assigned handbook rules to three different categories:
Category 1: This category would include rules that are lawful because, when reasonably interpreted, they do not prohibit or interfere with the exercise of protected rights, or because any adverse impact on protected rights would be outweighed by the employer’s justification for the rule. The following types of rules fall within this category:
- Civility rules, courtesy rules and rules prohibiting the disparagement of fellow workers or offensive language;
- Rules restricting photography and recording in the workplace;
- Rules addressing insubordination and refusing to cooperate on-the-job which adversely affects operations;
- Disruptive behavior rules such as creating a disturbance on company property or creating discord with clients or fellow employees;
- Rules prohibiting the disclosure of confidential, proprietary and customer information or documents (as long as there is no specific reference to employee or wage information);
- Rules prohibiting defamation or misappropriation;
- Rules against the use of company logos or intellectual property;
- Rules requiring authorization before speaking on behalf of the company;
- Rules prohibiting disloyalty, nepotism or self-enrichment.
According to the General Counsel, the above rules generally should not be interpreted to bar protective activities under Section 7. This reflects the NLRB’s new emphasis on identifying rules that actually dissuade Section 7 protected rights as opposed to rules that “in theory” may dissuade such activities.
Category 2: Rules under this category warrant individualized scrutiny to determine their impact on Section 7 rights. Examples of such rules would 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 that broadly encompass employer business information or employee information that may be interpreted to cover wages, terms of employment, or working conditions;
- Rules prohibiting disparagement of an employer as opposed to coworkers;
- Rules prohibiting the use of an employer’s name as opposed to a logo or trademark;
- Rules restricting employees from speaking to the media generally (as opposed to speaking to the media on the employer’s behalf);
- Rules banning off-duty conduct that may harm the employer (as opposed to insubordinate and disruptive behavior at work);
- Rules against making false or inaccurate statements (as opposed to making defamatory statements).
Rules under Category 2 will be evaluated on a case-by-case basis to determine if the employer’s justification for the rule outweighs any adverse impact on Section 7 rights.
Category 3: Rules within this category are generally unlawful because they restrict Section 7 rights without justification. According to the General Counsel, such rules would include:
- Confidentiality rules that specifically apply to wages, benefits or working conditions;
- Rules against joining an outside organization or that prohibit employees from voting on matters concerning the employer.
Prior to the General Counsel’s guidance and the Boeing decision, employers were very hesitant to implement or enforce rules relating to employee conduct for fear that such rules could be construed as “possibly” infringing on Section 7 rights. The new guidance certainly helps clarify matters by providing specific examples of acceptable and non-acceptable policies. More importantly, it takes away the presumption that ambiguities in workplace rules should be resolved against the employer who drafted the rule. The General Counsel’s Memorandum on handbook rules can be found at www.nlrb.gov/reports-guidance/general-counsel-memos.