NLRB Surrenders Its War Against Employee Handbooks

By Timothy F. Murphy - Skoler, Abbott & Presser, P.C.

October 15, 2018

In June, the National Labor Relations Board’s (NLRB) General Counsel released a memorandum providing guidance on the NLRB’s December 2017 decision in The Boeing Company, 365 NLRB No. 154, which established a new standard for evaluating the legality of employer rules, policies, and handbook provisions under the National Labor Relations Act (NLRA).  The Boeing decision established a balancing test which weighs the interests of the employer in maintaining work rules against the impact of those rules on employee rights guaranteed by the NLRA.  In interpreting this employer-friendly decision, the General Counsel introduced three categories of employer policies:

Rules that are Generally Lawful to Maintain

• Civility rules
• Rules prohibiting photography or recording
• Insubordination, non-cooperation, and refusal to cooperate rules
• Disruptive behavior rules
• Rules protecting disclosure of confidential, proprietary and customer information (as long as they don’t reference wage or employee information)
• Rules against defamation or misrepresentation
• Rules prohibiting use of employer’s logos or intellectual property
• Rules requiring authorization to speak on behalf of the company
• Rules banning disloyalty, nepotism, or self-enrichment

Rules that Warrant Individual Scrutiny (meaning the lawfulness of these types of rules must be determined on a case-by-case basis)

• Broad conflict of interest rules
• Confidentiality rules that encompass “employer business” or employee information
• Rules preventing disparagement of the employer
• Rules prohibiting or regulating use of the employer’s name (as opposed to employer’s logo/trademark)
• Rules restricting employees from generally speaking to the media
• Rules banning off-duty conduct that would harm the employer
• Rules prohibiting making false statements (as opposed to defamation)

Rules that are Unlawful to Have

• Confidentiality rules regarding wages, benefits, or working conditions
• Rules that prohibit joining outside organizations or that require employees to refrain from voting on matters concerning the employer

Takeaways

The memo is good news for employers because it provides a clear roadmap to evaluate the legality of employer handbook rules.  It also declares several policies lawful that had been declared unlawful by the prior Board.  If you shied away from enacting handbook policies (like no camera/recording or respect/civility rules) or changed your handbook policies to ensure compliance with the Obama Board’s crackdown, you may want to revisit those changes now because the crackdown is over (for now).  Let us know if we can help you do that here at Skoler Abbott.