By Erica Parks

On June 6, the National Labor Relations Board’s (NLRB) Office of the General Counsel issued Memorandum 18-04, titled “Guidance on Handbook Rules Post-Boeing.”  In it, the NLRB’s General Counsel (GC), provided guidance to the NLRB’s regional offices regarding how to analyze the legality of common employer policies in light of the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (December 14, 2017).  The Boeing decision and the GC’s memo represent a pro-employer shift away from the NLRB’s decidedly more pro-employee positions during the Obama administration.

In Boeing, the NLRB announced a new standard for analyzing whether a work rule violates employees’ rights under the National Labor Relations Act (NLRA).  In short, the standard focuses on “the balance between the rule’s negative impact on employees’ ability to exercise their Section 7 rights [to engage in concerted activities] and the rule’s connection to employers’ right to maintain discipline and productivity in their workplace.”  In Boeing, the NLRB delineated three categories of employment policies, rules, and handbook provisions:

• Category 1 includes “rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.”
• Category 2 includes “rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.”
• Category 3 includes “rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.”

In the memorandum, the GC provided examples of common types of employee policies under each of the three Boeing categories.  According to the GC’s memo, Category 1 rules are generally lawful and regional directors should dismiss charges based on such rules, including:

• Civility Rules. For example, a rule that prohibits “[r]ude, discourteous or unbusinesslike behavior.”
• No Photography or Recording Rules. Rules that prohibit the use of cameras or audio recording devices, such as the rule at issue in Boeing which prohibited the use of camera-enabled cell phones to take photographs, fall in to Category 1. [Note, however, that the Division of Advice has concluded that a ban on mere possession of cell phones at work may be unlawful where the employees’ main method of communication during the work day is by cell phone].
• Rules Re: Insubordination, Non-cooperation, or On-the-job Conduct that Adversely Affects Operations. For example, a rule that prohibits “‘[b]eing uncooperative with supervisors . . . or otherwise engaging in conduct that does not support the Employer’s goals and objectives.’”
• Disruptive Behavior Rules. For example, prohibitions against “[c]reating a disturbance on Company premises or creating discord with clients or fellow employees.”
• Confidentiality Rules.  Rules banning the discussion of confidential, proprietary, or customer information that make no mention of employee or wage information are generally lawful.  For example: “[I]nformation concerning customers . . . shall not be disclosed, directly or indirectly” or “used in any way.”
• Rules Against Defamation or Misrepresentation. A rule against “[m]isrepresenting the company’s products or services or its employees” is a lawful rule.
• Rules Requiring Authorization to Speak for Company.  “The company will respond to media requests for the company’s position only through the designated spokespersons” is an example of a lawful rule.
• Rules Banning Disloyalty, Nepotism, or Self-Enrichment.  For example: “Employees are banned from activities or investments . . . that compete with the Company, interferes with one’s judgment concerning the Company’s best interests, or exploits one’s position with the Company for personal gain.”

Category 2 rules require an evaluation of the rule on a case-by-case basis using the Boeing standard. Examples 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, which are lawful, or confidentiality rules directed at employee wages, terms of employment, or working conditions, which are categorically unlawful).
• 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 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, which generally are lawful, or rules specifically banning participation in outside organizations, which are per se unlawful).
• Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

Category 3 rules, which are unlawful, include:

• Confidentiality rules specifically regarding wages, benefits, or working conditions.  Rules prohibiting employees from disclosing salaries or the contents of employment contracts are categorically unlawful.
• Rules against joining outside organizations or voting on matters concerning the employer.  Such rules are per se unlawful.

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We recommend that employers review and revise, as necessary, their policies and handbooks to reflect the NLRB’s decision in Boeing and the GC’s memo.