New NLRB Guidance on Workplace Rules Provides Greater Clarity for Employers

In June, the National Labor Relations Board ("NLRB") General Counsel, Peter B. Robb, issued a Guidance Memorandum on "Handbook Rules Post-Boeing" ("GC Memo 18-04").  GC Memo 18-04 summarizes the Board's late-2017 decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), outlining three categories of handbook rules: (1) those that are decidedly permissible under the National Labor Relations Act ("NLRA"), (2) those that warrant Board scrutiny on a case-by-case basis, and (3) those that are decidedly impermissible under the NLRA.  GC Memo 18-04, and the Board's decision in Boeing, reflect a much-anticipated shift away from the Obama Board's handbook decisions.  The Board's guidance is summarized below and provides keen insight for Employers looking to implement new work rules governing employee conduct.

The Guidance

Following Boeing and GC Memo 18-04, employers have greater clarity and predictability around whether or not many policies and rules will be upheld under the NLRA. GC Memo 18-04 provides specific guidance on the rules outlined below.

Category 1: Lawful Rules

Pursuant to GC Memo 18-04, the following rules are generally lawful and charges filed relating to such rules will be dismissed:

• Civility Rules: Rules that prohibit (i) inappropriate conduct, (ii) rude, condescending, socially unacceptable or un-businesslike behavior, or (iii) disparaging/offensive/negative language or comments about other employees.
  
  
• No Photography or Recording Rules: Rules that prohibit taking photos, video or audio recordings without prior approval.  
  
  
• Insubordination Rules: Rules that prohibit insubordination, unlawful or improper conduct, uncooperative behavior, refusal to comply with orders or perform work, or on-the-job conduct that adversely affects the employer's operation.
  
  
• Disruptive Behavior Rules: Rules that prohibit (i) disruptive or disorderly conduct, or (ii) creating disturbance/discord.
  
  
• Confidentiality Rules: Rules that prohibit disclosure of (i) confidential information concerning customers, business partners, vendors, or (ii) non-public proprietary company information.
  
  
• Rules Against Defamation or Misrepresentation: Rules that specifically prohibit misrepresentation or defamation, as opposed to false information.
  
  
• Rules Against Using Employer Logos or Intellectual Property: Rules that prohibit use of company logos, trademarks, or graphics without prior approval.
  
  
• Rules Requiring Authorization to Speak for Company: Rules that prohibit employees from speaking on behalf of the employer.
  
  
• Rules Banning Disloyalty, Nepotism or Self-Enrichment: Rules the prohibit blatant conflicts-of-interest and disloyalty (e., banning activities or investments that compete with the employer or interfere with the employer's best interests)
  
  

Category 2: Rules Warranting Individualized Scrutiny

Category 2 rules are "not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rules would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications."  GC Memo 18-04.  Under Boeing, the Board no longer considers whether a rule could be interpreted as covering protected and concerted activity, but rather if it would be so interpreted.  Pursuant to GC Memo 18-04, the following rules are not obviously lawful or unlawful and should be evaluated on a case-by-case basis:

• Broad Conflict of Interest Rules: Rules that do not specifically target fraud and self-enrichment.
  
  
• Broad Confidentiality Rules: Confidentiality rules broadly encompassing "employer business" (as opposed to proprietary information) or "employee information."
  
  
• Rules Against Disparaging Employer: Rules that prohibit criticism or disparaging comments about the employer, as opposed to civility rules regarding behavior towards other employees.
  
  
• Rules Regulating Use of Employer's Name: Rules prohibiting use of the employer's name, as opposed to use of the employer's intellectual property. 
  
  
• Broad Media/Third-Party Rules: Rules generally restricting employees from speaking to the media or other third parties, as opposed to prohibitions
  against making statements on the employer's behalf.
  
  
• Rules Regarding Off-Duty Conduct: Rules that ban off-duty conduct that might harm the employer, as opposed to rules banning insubordinate or disruptive conduct while at work.
  
  
• Rules Against Making False or Inaccurate Statements, as opposed to rules against intentionally false statements (e., defamation or misrepresentation).
  
  

Category 3: Unlawful Rules

Pursuant to GC Memo 18-04, the following rules are generally unlawful and the regional director should issue complaints for the maintenance of such rules:

• Confidentiality Rules Specifically Regarding Wages, Benefits, or Working Conditions: Rules that prohibit disclosure or discussion of salaries, working conditions or other terms of employment.
  
  
• Rules Against Joining Outside Organizations or Voting on Matters Concerning Employer: Rules that ban or limit membership in, or work for, outside organizations.

Impact on Employers

GC Memo 18-04 clearly outlines examples of workplace rules that are now permissible under Boeing.  Obama-era handbook decisions left many employers questioning the permissibility of rules that governed appropriate workplace conduct, often-times causing employers to remove such policies from their handbooks altogether.  GC Memo 18-04, however, paves the way for employers to again implement workplace rules that govern civility, insubordination and disruptive behavior. 

Employers must be aware, however, that while GC Memo 18-04 provides clarity on the specific examples it discusses, it is not a comprehensive review of all workplace rules.  While the guidance thus far, and the significantly more employer-friendly standard articulated in Boeing, suggest positive changes for employers, it is uncertain how other workplace rules will be categorized.  Employers drafting workplace rules not specifically identified as "Category 1" rules should always consider the business justifications for such rules, and tailor them appropriately. 

Employers should additionally be cognizant that Boeing and GC Memo 18-04 only address the maintenance of facially-neutral workplace rules.  They do not permit employers to apply such rules in a way that interferes with employees' Section 7 rights.  Accordingly, employers may not rely on valid workplace rules to prevent, stop, or issue discipline for, employees' protected activity. 

If you would like assistance with drafting a handbook or ensuring that your company's existing workplace rules are consistent with the law, please contact Jon Klinghoffer, Michael Sullivan or Meredith Kirshenbaum.