Monday, June 11, 2018

NLRB clarifies its new employee handbook rules

Late last year, in Boeing Co., the NLRB rewrote more than a decade of precedent by overturning its Lutheran Heritage standard regarding when facially neutral employment policies violate the rights of employees to engage in concerted activity protected by section 7 of the National Labor Relations Act.

The Board scrapped Lutheran Heritage‘s “reasonably construe” test (a work rule violates section 7 if an employee could “reasonably construe” an infringement of their section 7 rights) with a test that balances “asserted business justifications and the invasion of employee rights” by weighing “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).”

Boeing was a huge victory for employers (and the lawyers who advise them), who continued to struggle with the Obama era’s NLRB’s continuous overturning of what most considered to be garden-variety and innocuous work rules.

Last week, the NLRB’s Office of General Counsel put some meat on the Boeing bone by announcing the standards it will follow in determining whether to issues a complaint in cases involving challenges to facially neutral work rules.

The General Counsel Memo [pdf] explains, in great detail, the three categories under which the Board will evaluate the legality of handbook policies moving forward.

Category 1: Rules that are Generally Lawful to Maintain

These rules are presumed lawful because, when reasonably interpreted, they do not prohibit or interfere with the exercise of rights guaranteed by the Act, or because the potential adverse impact on protected rights is outweighed by the business justifications associated with the rule. Such rules include:
  • Civility rules
  • No-photography rules and no-recording rules
  • Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations
  • Disruptive behavior rules
  • 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: Rules Warranting Individualized Scrutiny

These rules are not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications. Such rules 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, or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions
  • Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees)
  • Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademarks
  • 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: Rules that are Unlawful to Maintain

Rules in this category are generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule. Such rules include:
  • Confidentiality rules specifically regarding wages, benefits, or working conditions (such as, “Employees are prohibited from discussing or disclosing wages, salaries, commissions, bonuses, or any other remuneration.”)
  • Rules against joining outside organizations or voting on matters concerning the employer

Importantly, these standards only apply to the “mere maintenance of facially neutral rules.” Moreover, “Rules that specifically ban protected concerted activity, or that are promulgated directly in response to organizing or other protected concerted activity, remain unlawful, and “the application of a facially neutral rule against employees engaged in protected concerted activity is still unlawful.” In other words, no matter how neutral handbook rule might be, it will never not render otherwise protected activity unprotected.

This guidance is welcome news for employers, as it provides much needed information on the re-drafting of many of the handbook policies employers feared they had to scrap under the Board’s questionable Obama-era rulings.

* Image by DariuszSankowski via Pixabay