NLRB General Counsel Issues Employer-Friendly Work Rule Guidance

June 11, 2018

The General Counsel for the National Labor Relations Board (NLRB) has issued a Memorandum to the NLRB Regional Offices entitled “Guidance on Handbook Rules Post-Boeing.” InThe Boeing Company case, the NLRB established a new standard for evaluating employer rules that balances the potential impact of the rule on employees’ rights against the employer’s legitimate justification for the rule. The decision also set forth three categories of work rules: (1) rules that are generally lawful to maintain; (2) rules that require case-by-case consideration to determine if they are lawful; and (3) rules that are unlawful. The Memorandum provides the types of work rules that generally will fall under each category.

Category 1. The types of rules in this category are generally lawful. The following types of rules fall into this category:

  • Civility rules
  • No-photography and no-recording rules
  • Rules against insubordination
  • Non-cooperation, or on-the-job conduct that adversely affects operations rules
  • 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. The rules in this category 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 National Labor Relations Act (NLRA), and if so, whether any adverse impact on those rights is outweighed by legitimate justifications. Examples of possible Category 2 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/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. 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. The Memorandum lists in this category:

  • Confidentiality rules specifically regarding wages, benefits, or working conditions; and
  • Rules against joining outside organizations or voting on matters concerning the employer.