June 13, 2018
Traditionally, employers rely on personnel policies and employee handbooks to communicate workplace expectations and benefits to employees. Earlier this decade, the National Labor Relations Board (“NLRB”) began aggressively scrutinizing those policies and concluding that many “could”—as opposed to would or did—interfere with employee-protections arising from the National Labor Relations Act (“NLRA”). At the time, many well-intentioned policies fell short of the NLRB's broad, subjective analysis, triggering policy revisions or deletions. Earlier this month, however, the NLRB General Counsel issued a new guidance document, Memorandum GC 18-04, confirming that the NLRB has switched from the earlier antagonistic approach to a more balanced analysis of standard personnel policies. The NLRB’s new approach will help employers communicate important workplace policies and reduce the threat of subjective unfair labor practice charges.
The NLRB’s new guidance sorts standard personnel policies into three categories: Category 1—rules that are generally lawful to maintain; Category 2—rules warranting individualized scrutiny; and Category 3—rules that are unlawful to maintain. The following is a summary, by category, of the types of policies identified by the NLRB guidance.
Category 1: Rules that are generally lawful to maintain
According to the new guidance, Category 1 policies are “generally lawful, either because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of rights guaranteed by the Act, or because the potential adverse impact on protected rights is outweighed by the business justifications associated with the rule.” This category includes:
- Civility rules—these types of policies prohibit inappropriate, rude, condescending, or disparaging comments or remarks in the workplace.
- No-photography or no-recording rules—policies that, for example, prohibit recording conversations in the workplace or videoing the workplace.
- Insubordination, non-cooperation, or on-the-job conduct that adversely effects operations—examples of these types of policies include prohibitions against insubordination, uncooperative behavior, or refusing to follow instructions.
- Disruptive behavior—prohibitions against boisterous or other disruptive conduct
- Confidentiality—the focus of this category is the protection of company confidential information, trade secrets, or proprietary information.
- Defamation or misrepresentation—these rules are intended to protect a company’s or an employee’s reputation against misrepresentation or defamation.
- Employer logos or intellectual property—these rules prohibit employee use of employer logos and trademarks.
- Authorization to speak for company—these policies designate who can speak on behalf of the employer.
- Disloyalty, nepotism, or self-enrichment—policies using words like “disloyalty” are no longer presumed to interfere with protected activity.
Category 2: Rules warranting individualized scrutiny
Under the new guidance, the NLRB will scrutinize policies falling within Category 2. “Rules in this category are not obviously lawful or unlawful, and must be evaluated on case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications.” Category 2 includes:
- Broad conflict-of-interest rules
- Overly broad confidentiality rules
- Rules prohibiting disparagement of the employer, as opposed to employees
- Rules regulating the use of the employer’s name, as opposed to logos/trademark rules
- Broad prohibitions against speaking to the media in general, rather than on the employer’s behalf
- Rules banning off-duty conduct
- Policies against false or inaccurate statements, as opposed to prohibitions against defamatory statements
Category 3: Rules that are unlawful to maintain
According to the new Guidance, some rules are unlawful because of their actual adverse impact on NLRA rights or their prohibition or limitation of NLRA-protected action. Having the following policies could trigger an unfair labor practice charge:
- Confidentiality rules specifically against wages, benefits, or working conditions—perhaps the best example in this category would be rules prohibiting employees discussing their wages.
- Rules against joining outside organizations or voting on matters concerning employer—policies prohibiting membership in “outside organizations,” for example, are presumed to be unlawful.
The NLRB’s new guidance will help employers establish or refine policies or procedures that foster communication, improve safety, protect corporate assets, and resolve conflict. Even the best-intentioned policy, however, can still violate the NLRA if the policy is applied to ban protected concerted activity or is created directly because of protected activity. Employers should review and update their policies and procedures in light of the NLRB’s new guidance.
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