On June 6, 2018, National Labor Relations Board (“NLRB”) General Counsel Peter B. Robb issued a memorandum (“GC 18-04”) to NLRB Regional Directors providing guidance on how to analyze employee handbook rules in the wake of the Board’s recent decision in The Boeing Co., 365 NLRB No. 154 (2017). This guidance provides employers with a helpful road map for navigating the Board’s new three-category—and more employer-friendly—approach to evaluating the lawfulness of employer handbook rules by balancing the employer’s interests against an employee’s right to engage in protected, concerted activity under Section 7 of the National Labor Relations Act (NLRA).
In the Boeing decision, released in December 2017, the Board overruled years of precedent to hold that it would now assess employer handbook rules by balancing the interests of the employer against the relative burden on NLRA rights. In making this assessment, the Board now will assign handbook rules to the following categories:
- Category 1: Rules that are lawful because, when reasonably interpreted, they do not prohibit or interfere with the exercise of NLRA rights, or because the potential adverse impact on protected rights is outweighed by the justifications on the rule;
- Category 2: Rules that warrant individualized scrutiny; and
- Category 3: Rules that generally are unlawful because they prohibit or limit NLRA-protected conduct without a countervailing justification outweighing the burden on NLRA rights.
In GC Memo 18-04, General Counsel Robb advised that in light of the Board’s decision in Boeing, Regions no longer should construe ambiguous handbook rules against the employer or automatically interpret a general rule as banning all activity that could conceivably fall under that rule. The memorandum also expands upon certain rule-specific discussion from the Boeing decision with a rule-by-rule demonstrative analysis, including analysis of rules that were historically problematic under the Board’s prior (and more employee-friendly) Lutheran Heritage test.
Per GC Memo 18-04, Regions generally should consider the following types of rules lawful (absent special circumstances or unlawful application), and therefore treat them as “Category 1” under the Board’s Boeing framework.
- Civility rules, courtesy rules, and rules prohibiting disparagement of coworkers
- No-photography and no-recording rules
- Insubordination, noncooperation, and refusal to cooperate rules
- Disruptive behavior rules
- Rules prohibiting the disclosure of confidential, proprietary, and customer information (so long as no reference is made to “employee” or “wage” information)
- Rules prohibiting defamation/misrepresentation
- Rules prohibiting using employer’s logos or intellectual property
- Rules requiring authorization to speak on behalf of the Company
- Rules prohibiting disloyalty, nepotism, or self-enrichment
In balancing the employer and employee interests at stake, the General Counsel explained that even if some limited exercises of protected concerted activity might literally violate one of the above types of rules, reasonable employees generally would not interpret the rule to bar such protected activities, and/or the rule probably would not dissuade an employee from actually exercising their Section 7 rights. For instance, the memo notes, if an employee wanted to plan a strike or walkout, a handbook rule against “disruptive behavior” almost certainly would not actually deter that employee from carrying out that plan. The reasoning reflects the Board’s new emphasis on identifying rules that actually would dissuade Section 7 protected concerted activity, as opposed to rules that theoretically could dissuade such activity.
The General Counsel identified the following as “possible examples” of rules requiring individualized scrutiny under “Category 2” of the Board’s Boeing framework:
- Broad conflict-of-interest rules
- Confidentiality rules that encompass “employer business” or “employee information”
- Rules prohibiting disparagement of the employer (as opposed to coworkers)
- Rules prohibiting or regulating use of the employer’s name (as opposed to the employer’s logo/trademark)
- Rules restricting employees from speaking to the media generally (as opposed to on the employer’s behalf)
- Rules banning off-duty conduct that would harm the employer (as opposed to insubordinate/disruptive behavior at work)
- Rules prohibiting making false statements (as opposed to defamation)
Finally, the General Counsel advised that the following types of rules normally would be considered unlawful under the Boeing framework (“Category 3”):
- Confidentiality rules regarding wages, benefits, or working conditions
- Rules that prohibit joining outside organizations or that require employees to refrain from voting on matters concerning the employer
It remains to be seen how the Boeing framework will apply to rules other than those delineated above. For instance, the General Counsel’s memo states, how Boeing will apply to rules requiring confidentiality of discipline or arbitration, or rules limiting an employee’s access to Board processes, remains unclear and such cases will be submitted by Regions to the Board’s Division of Advice for further analysis. Established frameworks for evaluating other types of rules (like no-solicitation/distribution or premises access) remain intact for the time being.