On June 6, 2018, the General Counsel’s Office of the National Labor Relations Board (“NLRB”) issued its “Guidance on Handbook Rules Post-Boeing” (“Guidance”). The Guidance follows up and clarifies the recent Board decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017) and may be accessed here.
Refresher on the Boeing decision: The Boeing decision set out a new standard for evaluating workplace policies and discussed when those policies might run afoul of an employee’s Section 7 rights under the National Labor Relations Act (“NLRA”) to engage in protected concerted activity. The gist of the Boeing decision was to divide workplace policies into three categories: (1) policies that are generally lawful because the policies, as reasonably interpreted, do not interfere with an employee’s Section 7 rights or because the potential adverse impact on those rights is outweighed by a business justification associated with the policy, (2) policies warranting individualized scrutiny because they are not obviously lawful or unlawful, and (3) policies that are generally unlawful because they would prohibit or limit NLRB-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the policies.
The post-Boeing Guidance issued on June 6 provides specific advice on the placement of some common workplace policies in the three categories noted above. The following is a summary of the policies discussed in the Guidance and placement of those policies within the respective categories. Also included are some examples of common policy verbiage cited by the NLRB in the Guidance.
Category 1 Policies: Policies That Are Generally Lawful To Maintain
- Civility Rules: “Rude, discourteous or unbusinesslike behavior is forbidden”
- No-Photography Rules And No-Recording Rules: “Employees may not record conversations, phone calls, images or company meetings with any recording device without prior approval”
- Rules Against Insubordination, Non-Cooperation, Or On-the Job Conduct That Adversely Affects Operations: “Being uncooperative with supervisors . . . or otherwise engaging in conduct that does not support the [Employer’s] goals and objectives is prohibited”
- Disruptive Behavior Rules: “Disorderly conduct on [Employer] premises and/or during working hours for any reason is strictly prohibited”
- Rules Protecting Confidential, Proprietary, And Customer Information Or Documents: “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors, or customers”
- Rules Against Defamation Or Misrepresentation: “Do not email messages that are defamatory”
- Rules Against Using Employer Logos Or Intellectual Property: “Do not use Company logo, trademark, or graphic [without] prior written approval”
- Rules Requiring Authorization To Speak For Company: “The company will respond to media requests for the company’s position only through the designated spokespersons”
- Rules Banning Disloyalty, Nepotism, Or Self-Enrichment: “Employees may not engage in conduct that is disloyal . . . competitive, or damaging to the company such as illegal acts in restraint of trade or employment with another employer”
Category 2 Policies: Policies Warranting Individualized Scrutiny
- Broad conflict-of-interest policies that do not specifically target fraud and self-enrichment;
- Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information);
- Policies regarding disparagement or criticism of the employer;
- Policies regulating use of employer’s name (as opposed to logo/trademark);
- Policies generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf);
- Policies banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work);
- Policies against making false or inaccurate statements (as opposed to rules against making defamatory statements).
Category 3 Policies: Policies That Are Unlawful To Maintain
- Confidentiality Rules Specifically Regarding Wages, Benefits, Or Working Conditions: “Employees are prohibited from disclosing salaries, contents of employment contracts . . .”
- Rules Against Joining Outside Organizations Or Voting On Matters Concerning The Employer: A policy that would be interpreted as restricting membership or work for a union or requiring employees to remove themselves from discussing or voting on any matters concerning the employer
The Bottom Line for Employers: Employers should take this opportunity to review their employee handbooks in light of the Guidance. The Guidance provides some welcome stability following the pre-Boeing precedent in which many common policies were challenged and often struck down by the NLRB. It also provides employers with some confidence as to what policies generally will not run afoul of the NLRB and where they may have some risk. That said, there are still a number of outstanding questions the Guidance does not address, such as how will the NLRB treat rules regarding mandatory participation in workplace investigations, use of an employer’s e-mail systems, and confidentiality of workplace investigations and/or arbitration proceedings. And, of course, the Boeing decision itself was limited to the maintenance of facially neutral policies. Policies that specifically ban protected concerted activity, or that are enforced in an unlawful manner (e.g., in response to organizing or other protected concerted activity), remain unlawful.