Not so long ago, employers needed to be wary of having policies and handbook provisions requiring employees to be courteous, professional, respectful, and the like, for fear that the National Labor Relations Board would find them in violation of the National Labor Relations Act. The Board’s reason at that time was that such policies and rules could have a “chilling effect” on employees’ rights under the Act. Many employers abandoned such rules and policies rather than risk litigation with the Board.
In December 2017, with new members in the majority, the Board issued a decision involving Boeing Company that rejected the “chilling effect” standard and replaced it with a balancing test, weighing an employer’s interest in maintaining the work rules against their effect on workers’ rights. In the Boeing case, the Board specifically addressed the notion that a rule was unlawful if it could be interpreted as limiting protected activity, and replaced it with a standard that rules were unlawful only if they would be interpreted as interfering with protected activity.
Then, in June 2018, the NLRB’s new general counsel issued a memorandum for the agency’s regional offices, providing guidance on the balancing test established in the Boeing case. The guidance divides rules into three categories: rules that are generally lawful to maintain (category 1 rules); rules that are unlawful to maintain (category 3 rules); and rules warranting individual scrutiny (category 2 rules).
Category 1 rules (those that are generally lawful) include civility rules, no- photography and no-recording rules, rules against insubordination, noncooperation, or on-the-job conduct that adversely affects operations, and disruptive-behavior rules; 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. The general counsel memorandum states that attacks on category 1 rules should be dismissed, unless the rules have been discriminatorily enforced against protected activity.
Category 3 rules (those that are unlawful to maintain) include confidentiality rules, specifically regarding wages, benefits, or working conditions, and rules against joining outside organizations or voting on matters concerning the employer. The general counsel memorandum directs that regional offices issue complaints as to category 3 rules unless the matter is settled.
Category 2 rules (those warranting individual scrutiny) are not obviously lawful or unlawful and need to be evaluated on a case-by-case basis. The general counsel memorandum contemplates that category 2 cases will be submitted to the Board’s Division of Advice for guidance.
Last month, the NLRB’s Division of Advice, which answers questions posed by the agency’s regional offices about active cases, issued several guidance memoranda dealing with specific applications of the Boeing case principles. We list below the employer rules discussed in the advice memoranda. The results are instructive.
The following were determined to be lawful:
- A rule requiring employees to cooperate with company investigations.
- A rule that employees not wear items of apparel “with inappropriate commercial advertising or insignia.”
- A rule requiring workers to exercise a “high degree of caution” when handling specific sensitive information and allowing only certain spokespeople to be the employer’s public communicator.
On the other hand, the following were determined to be unlawful:
- A rule that employee handbooks and their contents are confidential.
- A rule restricting workers’ nonbusiness use of company e-mail at any time because under current law an employer that provides its employees with access to its e-mail system as part of their work must allow those employees to make personal use of the e-mail system during nonworking time.
- A rule restricting disclosure of payroll information.
- A rule restricting employees from using their personal cell phones during “working hours,” since employees have the right to communicate with each other during lunch or break periods.
These advice memoranda demonstrate that employers must still be careful about the content of their rules and policies. While the current NLRB continues to take a more commonsense approach to policies and rules, limitations still exist, as a number of employers have found out the hard way. The bottom line is that there is no substitute for a regular review, at least annually, of your workplace policies and rules for compliance with federal labor law.