Professional Service Agreement

It is Time to Review Your Handbook: NLRB Changes the Rules on Workplace Rules

November 01, 2018

The National Labor Relations Board last year overturned an established standard for determining if workplace rules comply with the National Labor Relations Act.

The National Labor Relations Act protects the right of workers to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7 of the NLRA protects employee rights in both union and nonunion workplaces to discuss working conditions, including pay.

In 2004, the National Labor Relations Board addressed the rules employers could include in employee handbooks. The NLRB’s Lutheran Heritage Village-Livonia decision stated that workplace rules violated the NLRA if they would “reasonably tend to chill employees in the exercise of their Section 7 rights.”

Throughout the Obama administration, the NLRB steadily tightened these restrictions, leading to a 2015 memorandum detailing eight different categories of employer rules. Essentially, any rule that might chill employees from exercising their Section 7 rights became unlawful.

The clock turned back in December 2017, when the NLRB issued its decision in The Boeing Company. Now the NLRB has issued a memorandum providing employer guidance reflecting The Boeing Company decision.

Three Workplace Rule Categories

It delineates three workplace rule categories outlined in The Boeing Company decision.

  • “Category 1 will include rules that the Board 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.”
  • “Category 2 will 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.”
  • “Category 3 will include rules that the Board 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.”

It’s time for clients to update their employee handbook. You may be able to reinstate some rules that were cut in response to the NLRB’s 2015 memorandum. The new NLRB memorandum provided numerous examples.

Category 1 Examples

Many common workplace rules are covered in Category 1, as long as they meet certain requirements.

  • Civility rules. Employers may ban behavior that is “rude, condescending or otherwise socially unacceptable” without violating the NLRA.
  • No photography or recording rules. Employers may generally bar photography and recording devices at work without violating the NLRA. However, employees engaged in legitimate whistleblowing activities may have rights under whistleblowing laws enforced by state agencies or the Occupational Safety and Health Administration.
  • Insubordination rules. It does not violate the NLRA to prohibit being “uncooperative with supervisors ... or otherwise engaging in conduct that does not support” the employer’s goals and objectives.
  • Disruptive behavior rules. Employers may bar disturbances “on Company premises or creating discord with clients or fellow employees.” Note, however, that the NLRA still permits strikes and walkouts.
  • Confidentiality rules. Rules banning the discussion of confidential, proprietary or customer information are generally lawful. Make sure the rule does not mention employee or wage information.
  • Rules against defamation or misrepresentation. Employers may ban employees from misrepresenting “the company’s products or services or its employees.”

Category 2 Examples

Category 2 rules will be judged on a case-by-case basis. Examples include:

  • 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 referring to “employer business” or “employee information,” as opposed to rules covering customer or proprietary information or rules targeting employee wages, terms of employment or working conditions.
  • Rules barring criticismof the employer, as opposed to civility rules concerning disparaging employees.
  • Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo or trademark).
  • Rules generally restricting speaking to the mediaor third parties.

Category 3 Examples

Category 3 rules are always unlawful. Examples include:

  • Confidentiality rulesspecifically regarding wages, benefits or working conditions.
  • Rules against joining outside organizationsor voting on matters concerning the employer.

Contact your HR and employment law partner and have your handbook reviewed and updated by our consulting and legal team.