In December of 2017, the NLRB issued The Boeing Company decision, in which the Board rolled back its previous expansive restrictions on application of certain employer workplace rules. In Boeing, the Board returned to its prior more relaxed and employer-friendly standard for evaluating whether certain employee work rules were complaint with Sections 7 and 8 of the National Labor Relations Act (NLRA).
Section 7 of the NLRA provides employees with “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Over the last several years, the Board had taken an aggressive position against work rules and employee handbook provisions, finding Section 8 violations for facially neutral polices and rules that could have been interpreted by employees to interfere with their Section 7 rights.
The new standard adopted by the Board in Boeing strikes a more reasonable balance between rules that have a negative impact on an employee’s ability to exercise his or her Section 7 rights versus an employer’s legitimate and substantial business interests.
This month the NLRB’s Office of the General Counsel issued Memorandum GC 18:04 providing helpful guidance to employers on how the NLRB will evaluate handbook rules post-Boeing.
The new standard divides employer policies into three broad categories. They are evaluated based upon two factors: (1) the nature and extent of the potential impact on NLRA rights; and (2) legitimate business justifications associated with the rule. Additionally, it is important to the Board held in Boeing that “the application of a facially neutral rule against employees engaged in protected activity is still unlawful.”
Category 1: Rules that are Generally Lawful
Policies falling under Category 1 are typically found lawful unless they are too restrictive on an employee’s rights. Complaints brought regarding policies in this category are typically withdrawn or dismissed absent an adverse impact on protected rights that outweigh the business justifications associated with the rule.
Civility rules in an employee handbook are aimed at promoting a civil workplace and preventing employees from disparaging one another. The Board noted employees can still exercise their rights under Section 7 without disparaging their coworkers.
No-Photography and No-Recording Rules
In Boeing, the Board placed rules prohibiting employees from utilizing recording devices or taking pictures in Category 1. They reasoned such activity is not central to an employee’s ability to exercise rights under Section 7.
Rules Against Insubordination, Non-Cooperation, or On-the-Job Conduct that Adversely Affects Operations
Unless a policy specifically prohibits employees from engaging in protected concerted activity, rules prohibiting insubordination would typically not be interrupted by an employee to infringe upon their Section 7 rights. Rather, an employer has a legitimate and substantial interest in having employees perform their assigned duties and follow instructions.
Disruptive Behavior Rules
Rules prohibiting disruptive behavior are typically utilized to prevent employees from horseplay or other behavior that adversely affects productivity and safety. Employers have a substantial business interest in a workplace free from either physical or verbal behavior that disrupts the workplace or creates a hostile work environment. Employees typically would not interpret such a policy to interfere with Section 7 rights.
Rules Protecting Confidential, Proprietary, and Customer Information or Documents
Employers have a substantial legitimate business interest in protecting confidential customer information and proprietary information. Such information is not subject to collective bargaining and employees would typically not see a ban on disclosure of such information as a restriction on their rights to engage in protected concerted activity.
Rules against Defamation or Misrepresentation
The Guidance treats this section similar to the civility rules aimed at preventing an unhealthy workplace. If an employee intentionally uses defamatory speech (i.e., false statements of fact harmful to the reputation of another person) when engaged in a concerted speech to improve work conditions, such speech may be not be considered protected. The Board recognized in the Guidance that employers have a legitimate and substantial business interest in protecting their reputations and employees from false, defamatory statements.
Rules against Using Employer Logos or Intellectual Property
Rules such as these are aimed at protecting an employer’s intellectual property from commercial and other non-Section 7 related uses. Employees would not interpret such policies to prohibit an employee from exercising their rights.
Rules Requiring Authorization to Speak for Company
Similarly, a company has a substantial legitimate interest in requiring only authorized individuals to speak on behalf of the company. This helps to control a company’s message and communicate a unified message. So long as there is no impact on Section 7 rights, such rules will typically fall into Category 1.
Rules Banning Disloyalty, Nepotism, or Self-Enrichment
Historically, the Board interpreted these rules as not having any meaningful impact on Section 7 rights. Such rules can be critical in certain industries such as finance, law, and other professional industries where conflicts of interest have the potential to undermine a company’s reputation and integrity.
Category 2: Rules Warranting Individualized Scrutiny
Employer rules in this category are evaluated on a case-by-case basis. The Board looks at two factors: (1) whether the rule interferes with rights guaranteed by the NLRA; (2) whether any adverse impact on Section 7 rights are outweighed by legitimate justifications. The key question in the analysis as to whether a rule would read to preclude some Section 7 activity is “whether the employer’s particular business interest in having the rule outweighs the impact on Section 7 rights.”
Category 3: Rules that are Unlawful to Maintain
Rules that fall within Category 3 are typically found to be unlawful because they either prohibit or limit protected conduct and such limitations outweigh any legitimate business interest.
Confidentiality Rules Specifically Regarding Wages, Benefits, or Working Conditions
Rules prohibiting employees from disclosing their salaries or employment contract contents will fall under Category 3 because they act as a ban on discussing wages or working conditions. This activity is central to an employee’s exercise of his rights under Section 7.
Rules Against Joining Outside Organizations or Voting on Matters Concerning Employer
Rules that prohibit or regulate an employee’s ability to join outside organizations may have implications on their ability to exercise their rights to engage in protected concerted activity. If a conflict of interest rule could be reasonably interpreted as excluding employees from being able to become members of a union, then it has the effect of chilling an employee’s exercise of his Section 7 rights and would likely fall under Category 3.
With the OGC Guidance, employers should review their policies and procedures and determine whether the revised standards permit them to adopt or reword their policies and procedures to promote a positive workplace culture. Employers should work with an experienced employment law attorney or labor relations professional to ensure that their policies, procedures, work rules and employee handbooks are compliant with Sections 7 & 8 of the NLRA.
Bill Egan is a Seasoned Employment Law Attorney backed by over 33 years of proven, veteran experience. He specializes in navigating businesses through conflict resolution in the workplace.
Rachell Henning is a second-year student at Mitchell Hamline School of Law's innovative Hybrid program. Rachell is an Avisen Fellow who enjoys spending time with her husband and two young daughters when she is not working or studying.