NLRB Publishes Memo on Employer Handbook Policies 

June 11, 2018

The National Labor Relations Board’s General Counsel Peter Robb has sent a memorandum to its Regional Administrators, instructing them how to interpret claims of improper workplace rules in employee handbooks in light of a Board decision last fall.

While intended for NLRB regional offices, the document is useful “blueprint” for employers, including ILMA members, to determine general “rules of the road” for employee handbook policies.

The memo elaborates upon a 2017 NLRB decision in The Boeing Company that significantly altered the analysis and interpretation of workplace rules and outlined a new test that will hopefully make it easier for employers to establish and enforce reasonable workplace rules and restrictions.

The Boeing decision reversed an Obama-era rule under which the NLRB would consider a rule, policy, or handbook provision unlawful if an employee would reasonably construe the language to prohibit protected union activity. The Board found this standard exceptionally difficult to apply.

In Boeing, the NLRB held that, when interpreting a facially neutral handbook policy in the future, it will evaluate the “nature and extent of the potential impact on NLRA rights and legitimate justifications associated with the rule.”

NLRB will apply its new balancing test, in conjunction with its statutory mandates from the National Labor Relations Act (NLRA), and will determine whether an employer policy fits into one of the following three categories outlined in the Boeing decision:

Category 1: include rules that the NLRB designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. As outlined in the memo, the following would be considered “category 1 rules”:

  • Civility rules (such as “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 (such as “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: include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications. The following would be considered “category 2 rules”:

  • 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 broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information, or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions);
  • Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees);
  • Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark);
  • Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf);
  • Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations); and
  • Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

Category 3:
 include rules that the NLRB will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. The following would be considered “category 3 rules”:

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

ILMA members may want to revisit workplace policies and procedures to ensure they comport with the NLRB’s guidance.​​