New NLRB Guidance will ease restrictions on workplace policies

By: Miriam L. Rosen

After years of decisions by a National Labor Relations Board (“NLRB”) that seemed to have lost sight of how work rules impact the practical realities of the workplace, employers recently received some relief.   On June 6, 2018, NLRB General Counsel Peter Robb issued a new Guidance Memorandum setting out how the NLRB’s Regional Offices should interpret workplace policies.

Under the previous administration, the NLRB targeted a variety of standard employee handbook policies finding that the policies “chilled” employees’ rights to engage in “protected concerted activity” under the National Labor Relations Act (“NLRA”).   As a result,  many employers re-wrote common-sense policies, such as those on conduct, civility, and confidentiality, to avoid running afoul of the NLRB.

With a shift in the NLRB’s composition, the Board issued The Boeing Company case in December 2017 establishing a new and more practical standard for reviewing employment policies.   The new Boeing standard focuses on balancing a work rule’s possible negative impact on employees’ abilities to exercise their NLRA-protected rights and the rule’s connection to an employer’s business interest in maintaining workplace productivity and discipline.  The new Guidance Memo stems from the Boeing decision and provides specific examples of how the NLRB will evaluate various policies.

The Guidance groups work rules into three broad categories: rules that are generally lawful to maintain; rules that require individualized scrutiny; and rules that are unlawful. The Memo provides examples of common workplace policies likely to fall into each category:

Category 1 Rules:   Generally, these rules are lawful because when reasonably interpreted the rule does not prohibit or interfere with the exercise of NLRA-guaranteed rights, or because the potential negative impact on protected rights is outweighed by the business justifications for the rule. The Memo provides the following examples of rules that fall into this category include:

  • Civility rules (e.g., “disparaging, or offensive language is prohibited”);
  • No-photography rules and no-recording rules;
  • Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
  • Disruptive behavior rules (e.g., “creating a disturbance on company premises or creating discord with clients or fellow employees is prohibited”);
  • Rules protecting confidential, proprietary, and customer information or documents;
  • Rules against defamation or misrepresentation;
  • Rules against using employer logos or intellectual property;
  • Rules requiring authorization to speak for the company; and
  • Rules banning disloyalty, nepotism, or self-enrichment.

Category 2 Rules:  These are rules that are not clearly lawful or unlawful. As a result, these rules must be evaluated on a case-by-case basis to determine whether the rule would interfere with NLRA protected rights, and if so, whether any adverse impact on those rights is outweighed by legitimate business reasons.   Examples of Category 2 Rules include:

  • Confidentiality rules broadly encompassing “employer business” or “employee information” (but not confidentiality rules regarding customer or proprietary information, or, as noted below, confidentiality rules more specifically directed at     employee wages, terms of employment, or working conditions);
  • Rules regarding disparagement or criticism of the employer;
  • Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf);

Category 3 Rules:  These are rules that are generally unlawful because they prohibit or limit NLRA-protected conduct. As a result, the negative impact on NLRA rights outweighs any justifications for the rule. The Memo provided the following examples of rules in this category.

  • Confidentiality rules specifically regarding wages, benefits, or working conditions; and
  • Rules against joining outside organizations or voting on matters concerning the employer.

What this means for employers:  

Under the previous administration, the NLRB gave employers little latitude in crafting and maintaining workplace rules that generally existed to ensure that businesses could operate  efficiently.  Employers “scrubbed” policies and employee handbooks to minimize the risk of NLRB unfair labor practice charges.  This new Guidance opens the door for employers to once again review employee handbooks and other policies using the three categories outlined in the Memo. In revising policies, employers can now consider the underlying business reasons for the rule, not just the – often remote – possibility that the rule could impact protected concerted activity.  Employers should consult with an experienced employment attorney in revising employment policies consistent with the new Guidance.

This article was written by Miriam L. Rosen, who is a member of the Legal Affairs Committee of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at mrosen@mcdonaldhopkins.com or at (248) 220-1342.

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