NLRB General Counsel Peter Robb recently issued a memorandum outlining how his office plans to prosecute claims of unlawful workplace rules, and it is something that employers should probably become familiar with. This memorandum comes in light of the NLRB’s Boeing decision (365 NLRB No. 154 (Dec. 14, 2017)), which created a new employer-friendly standard as to how the NLRB would prosecute claims of unlawful workplace rules. Take a look at our discussion of the Boeing decision by clicking here.
The Boeing decision established three categories for evaluating employer work rules: 1) rules that are generally lawful; 2) rules that merit a case-by-case determination; and 3) rules that are plainly unlawful. The NLRB’s memo identifies the proper category for a number of typical workplace rules.
Category 1 (Lawful) Rules: These rules are generally lawful, as they either do not implicate an employee’s rights under federal law or because an employer’s business interests outweigh any relatively insignificant restrictions on those rights. Some of the examples mentioned in the memo include:
- Rules prohibiting uncivil behavior (like the use of disparaging or offensive language)
- No-photography rules and no-recording rules
- Rules against insubordination or other on-the-job conduct that negatively affects the workplace
- Disruptive behavior rules (like creating a disturbance or causing problems with clients or co-workers)
- 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 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 regarding employer business or employee information (as opposed to confidentiality rules regarding customer or proprietary information [which are generally lawful], or confidentiality rules directed at employee wages, terms of employment, or working conditions [which are generally 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 the employees’ rights severely enough to outweigh any potential employer justifications for them. 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
These distinctions are all pretty sensible, and it is likely that most employee handbooks have rules that are generally in compliance with them. However, it might be worth reviewing your handbook just to be sure. If you haven’t revised your employee handbook in the last few years, then it might be time to do so. Feel free to contact me for help doing so.