The Office of the General Counsel to the NLRB recently released new guidance on the types of employer handbook rules that are permissible in the wake of the Board’s December 2017 ruling in The Boeing Co, 365 NLRB No. 154 (12/17/17). In that case, the Board set a new standard for evaluating the lawfulness of workplace rules under Section 7 of the NLRA. The new standard weighs the importance of the employee’s exercise of their Section 7 rights against the employer’s need for discipline and productivity in the workplace.
At the outset, the General Counsel noted that is Boeing decision “significantly altered the jurisprudence on the reasonable interpretation of handbook rules.” The Memo advised NLRB Regional Directors that “ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all provisions that could conceivably be included.”
The General Counsel then went on to provide specific examples of types of handbook rules that are permissible, as well as those that are impermissible. The types are rules deemed to be “generally lawful” are:
- Civility rules, such as prohibitions on making disparaging or defamatory remarks about co-workers and rules prohibiting the use of offensive language;
- Rules prohibiting photography in the workplace;
- Rules prohibiting recording of conversations in the workplace;
- Rules against insubordination;
- Rules prohibiting disruptive behavior, boisterous conduct, creating a disturbance, and similar prohibitions on bad behavior;
- Rules prohibiting disclosure of customer information;
- Rules prohibiting disclosure of proprietary business information;
- Rules against misrepresenting the employer’s products or services;
- Rules against using the employer’s logo without proper authorization;
- Rules prohibiting employees from speaking on behalf of the employer without proper authorization; and
- Rules prohibiting disloyalty and conflicts of interest.
After enumerating the foregoing handbook rules that will generally be deemed lawful, the Memo identified the following as types of rules that require “individualized scrutiny:”
- Broad conflict of interest rules;
- Broad confidentiality rules, such as rules prohibiting the disclosure of “employee information;”
- Rules prohibiting disparagement of the employer (as opposed to employees);
- Rules prohibiting the use of the employer’s name (as opposed to its logo or trademark)
- Rules prohibiting discussing the employer in the media;
- Rules banning off-duty conduct that might harm the employer; and
- Rules against making false or inaccurate statements (as opposed to rules making disparaging or defamatory statements).
Finally, the Memo addresses those rules that are “generally unlawful because they would prohibit or limit NLRA-protected conduct.” These include:
- Rules prohibiting the discussion of wages, benefits and working conditions;
- Rules prohibiting joining outside organizations; and
- Rules prohibiting employees from voting on matters concerning the employer.
While the General Counsel’s memo does not have the same weight as a NLRB opinion, it certainly provides good insight as to the enforcement posture of the current NLRB. Employers should be heartened to see this guidance and receive this added clarity regarding the types of handbook rules that may be lawfully enforced.