In a
memorandum issued last week, NLRB General Counsel Peter Robb offered important guidance on how his office plans to prosecute claims of unlawful workplace rules in the wake of the Board’s restorative
Boeing decision (365 NLRB No. 154 (Dec. 14, 2017)). As we discussed
here last December, the
Boeing decision created a sensible standard for determining the lawfulness of work rules. This was a welcome change for employers, given the flurry of handbook-related activity under the Obama-era Board. Unfortunately, though,
Boeing gave little guidance on how to actually implement the new standard. Mr. Robb’s memo adds some clarity.
Recall that
Boeing established three different categories for evaluating employer work rules: 1) rules that are generally
lawful (known as “Category 1” rules); 2) rules that merit a case-by-case determination (“Category 2” rules); and 3) rules that are plainly
unlawful (“Category 3” rules). Within this framework, Mr. Robb’s memo identifies the proper category for a number of common work rules:
Category 1 (Lawful) Rules: These rules are generally lawful because either they do not affect employees’ rights under the National Labor Relations Act (NLRA) or because the employer’s business interests outweigh any incidental restrictions on those rights. Examples offered in the memo of rules that fit this category include:
- Rules prohibiting uncivil behavior (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 affect 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
- Rules banning disloyalty, nepotism, or self-enrichment
Category 2 (Case-by-Case) Rules: These rules are not clearly lawful or unlawful. Rather, the employer’s and employees’ interests must be weighed on a case-by-case basis to determine whether the rule is justified. Examples of such rules from the memo 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 encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information [tending to be lawful], or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions [tending to be unlawful])
- Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of fellow 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)
- Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements)
Category 3 (Unlawful) Rules: These rules are generally unlawful because they restrict employees’ NLRA rights severely enough to outweigh any potential employer justifications for the rules. The memo provides only two examples of rules that fit this category:
- Confidentiality rules specifically regarding wages, benefits, or working conditions
- Rules against joining outside organizations or voting on matters concerning the employer
This guidance will likely lead to fewer unfair labor practice complaints being pursued against employers based on their work rules. However, employers must take care to heed the guidance. Employers should review their handbooks and current work rules to ensure compliance with Mr. Robb’s memo. Employers should also consult these categories when contemplating future changes. For current and future Category 2 rules especially, employers should develop and document their (lawful) business justifications for the rules. Finally, employers should be aware that even Category 1 rules can be unlawful if they are adopted with the intent to deter employee protected, concerted activity, or if they are enforced in a manner that discriminates against such protected activity.
For more information, contact Frantz Ward Labor and Employment attorneys
Michael Frantz and
Ryan Smith.