NLRB General Counsel Issues Much Needed Guidance on Employee Handbooks
June 28, 2018
The General Counsel of the National Labor Relations Board (NLRB) has issued a memorandum providing guidance for determining the legality of employer rules under the National Labor Relations Act (NLRA). The memorandum explains that there will be three categories of work rules: (1) rules that are generally lawful to maintain; (2) rules warranting individualized scrutiny; and (3) rules that are unlawful to maintain. The General Counsel’s memorandum also makes clear that “ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.” However, rules that specifically ban activities protected under the NLRA or that are promulgated in direct response to employees engaging in protected activities are still unlawful. Likewise, a facially neutral rule is unlawful if it is applied against employees engaged in a protected activity.
The memorandum sets forth several examples of “Category 1” rules that are generally lawful to maintain. Category 1 rules include:
- Civility rules;
- No-photography and no-recording rules;
- Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
- Disruptive behavior rules;
- Rules protecting confidentially, 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; and
- Rules banning disloyalty, nepotism, or self-enrichment
While there are legitimate justifications for rules protecting the confidentiality of employee information, the General Counsel was careful to note that if such a rule specifically mentions employee or wage information, the rule falls within Category 2 and requires individualized scrutiny. The General Counsel was also careful to distinguish rules that protect documents or records with employee information, as opposed to employee information itself. While there are legitimate justifications for protecting documents and records with employee information, rules that prohibit the disclosure of employee information (as opposed to documents or records containing employee information) can be interpreted to prohibit protected activity.
Category 2 rules, like confidentiality rules that encompass “employee information,” require individualized scrutiny to determine whether the rule interferes with protected rights, and if so, whether the adverse impact on those rights is outweighed by a legitimate justification. The memorandum explains that the legality of rules in Category 2 will often depend on the context. The General Counsel was careful to note that when interpreting the appropriate context, “such rules should be viewed as they would be by employees who interpret work rules as they apply to the everydayness of their job.” Other factors that will be considered include examples provided within the rule, the placement of the rule among other rules, and whether the rule has actually caused employees to refrain from engaging in protected activity.
Many of the examples listed as Category 2 rules by the General Counsel are broader versions of Category 1 rules. For example, a rule prohibiting disparagement or criticism of the employer falls within Category 2, whereas civility rules prohibiting the disparagement of employees or rules prohibiting defamation of the employer fall within Category 1. Likewise, a rule that generally restricts speaking to the media or third parties falls within Category 2, while a rule that requires authorization to speak on the company’s behalf falls within Category 1.
Finally, Category 3 (rules that are unlawful to maintain) are those that have a serious adverse impact on the protected rights of employees and which have little to no legitimate business justification. Many of the rules that fall within Category 3 are rules that employers already understand to be unlawful, including confidentiality rules specifically prohibiting the discussion of employee wages, benefits, or working conditions or rules prohibiting employees from joining outside organizations.