Thank you, NLRB, for Encouraging Employers to Revise their Employee Handbooks... Again!

In Boeing, the Board established a new standard for determining when a work rule violates Section 8(a)(1) of the Act that focused on the balance between the rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline and productivity in their workplace.

The Board in Boeing specifically noted that the decision only applied to the mere maintenance of facially neutral rules. Rules that specifically ban protected concerted activity, or that are promulgated directly in response to organizing or other protected concerted activity, remain unlawful. Moreover, the Board held that the application of a facially neutral rule against employees engaged in protected concerted activity is still unlawful. A neutral handbook rule does not render protected activity unprotected.

Category 1: Rules that are Generally Lawful to Maintain

The General Counsel reasoned that the types of rules in this category 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.

A. Civility Rules

• “Conduct . . . that is inappropriate or detrimental to patient care of [sic] Hospital operation or that impedes harmonious interactions and relationships will not be tolerated.”
• “Behavior that is rude, condescending or otherwise socially unacceptable” is prohibited.
• Employees may not make “negative or disparaging comments about the . . . professional capabilities of an employee or physician to employees, physicians, patients, or visitors.”

In addition, the following examples should be considered lawful civility-type rules:

• “Disparaging . . . the company’s . . . employees” is prohibited.
• Rude, discourteous or unbusiness like behavior is forbidden.
• Disparaging, or offensive language is prohibited.
• Employees may not post any statements, photographs, video or audio that reasonably could be viewed as disparaging to employees.

B. No-Photography Rules and No-Recording Rules

The Board in Boeing placed no-photography rules in Category 1. The specific rule at issue there was:

• “[U]se of [camera-enabled devices] to capture images or video is prohibited . . . .

No-recording rules should similarly fall in Category 1. Such rules include:

• Employees may not “record conversations, phone calls, images, or company meetings with any recording device” without prior approval.
• Employees may not record telephone or other conversation they have with their coworker, managers, or third parties unless such recordings are approved in advance.

Note that, although the Board in Boeing addressed rules prohibiting the use of camera-enabled cell phones to take photographs, it did not address the use or possession of cellphones for communication purposes. 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.

C. Rules Against Insubordination, Non-cooperation, or On-the-job Conduct that Adversely Affects Operations

The Memo noted that almost every employer with a handbook has a rule forbidding insubordination, unlawful or improper conduct, uncooperative behavior, refusal to comply with orders or perform work, or other on-the-job conduct that adversely affects the employer’s operation. Some examples are:

• “Being uncooperative with supervisors . . . or otherwise engaging in conduct that does not support the [Employer’s] goals and objectives” is prohibited.
• “Insubordination to a manager or lack of . . . cooperation with fellow employees or guests” is prohibited.

D. Disruptive Behavior Rules

Disruptive behavior rules are also common in handbooks. Some examples of such rules are:

• “Boisterous and other disruptive conduct.”
• Creating a disturbance on Company premises or creating discord with clients or fellow employees.
• Disorderly conduct on Hospital premises and/or during working hours for any reason is strictly prohibited.

E. Rules Protecting Confidential, Proprietary, and Customer Information or Documents

According to the Memo, certain types of confidentiality rules also belong in Category 1, e.g., rules banning the discussion of confidential, proprietary, or customer information that make no mention of employee or wage information:

• “[I]nformation concerning customers . . . shall not be disclosed, directly or indirectly” or “used in any way.”
• Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendor, or customers.
• “Divulging Hotel-private information to employees or other individuals” is prohibited.
• No unauthorized disclosure of business secrets or other confidential information.

F. Rules against Defamation or Misrepresentation

The General Counsel stated that rules prohibiting defamation or misrepresentation should be placed in Category 1, notwithstanding that defamation that occurs in the course of Section 7 activity is legally protected if not engaged in with New York Times malice. Examples of such rules are:

• “[M]isrepresenting the company’s products or services or its employees” is prohibited.
• Do not email messages that are defamatory.

G. Rules against Using Employer Logos or Intellectual Property

Traditional rules prohibiting employee use of employer logos and trademarks also belong in Category 1. Examples of such rules are:

• Employees are forbidden from using the Company’s logos for any reason.
• “Do not use any Company logo, trademark, or graphic [without] prior written approval.”

H. Rules Requiring Authorization to Speak for Company

Rules requiring authorization to speak for the company or requiring that only certain persons speak for the company fall into Category 1. Examples of such rules are:

• The company will respond to media requests for the company’s position only through the designated spokespersons.
• Employees are not authorized to comment for the Employer.

I. Rules Banning Disloyalty, Nepotism, or Self-Enrichment

Rules banning these types of conflicts of interest have generally been deemed lawful, even prior to Boeing:

• Employees may not engage in conduct that is “disloyal . . . competitive, or damaging to the company” such as “illegal acts in restraint of trade” or “employment with another employer.”
• 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 Warranting Individualized Scrutiny

According to the Memo, rules in this category are not obviously lawful or unlawful, and must be evaluated on a 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.

Some of the rules in this category clearly would be read to preclude some Section 7 activity, and the key question then is whether the employer’s particular business interest in having the rule outweighs the impact on Section 7 rights. In considering that question, the ease with which an employer could tailor the rule to accommodate both its business interests and employees’Section 7 rights should be a relevant factor.

Some possible examples of Category 2 rules are:

• Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment (see Section 1-I, above) and do not restrict membership in, or voting for, a union (see Section 3-B, below)
• Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information, see Section 1-E, above, or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions, see Section 3-A, below)
• Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees, see Section 1-A, above)
• Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark, see Section 1-G, above)
• Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf, see Section 1-H, above)
• Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work, seeSections 1-C and 1-D, above, or rules specifically banning participation in outside organizations, see Section 3-B, below)
• Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements, see Section 1-F, above)

Category 3: Rules that are Unlawful to Maintain

The Memo states that rules in this category are generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule.

A. Confidentiality Rules Specifically Regarding Wages, Benefits, or Working Conditions

The Board has placed this type of rule in Category 3. The following are examples of some confidentiality rules that would be unlawful under his William Beaumont test, and that should be included in Category 3:

• Employees are prohibited from disclosing “salaries, contents of employment contracts . . . .”
• Employees shall not disclose “any information pertaining to the wages, commissions, performance, or identity of employees of the Employer.”

In addition, rules that expressly prohibit discussion of working conditions or other terms of employment should be considered Category 3 rules, for substantially the same reasons.

• Employees are prohibited from disclosing to “any media source” information “regarding employment at [Employer], the workings and conditions of [Employer], or any . . . staff member.”

B. Rules Against Joining Outside Organizations or Voting on Matters Concerning Employer

The General Counsel’s Memo offers some valuable guidance to employers who wish to bolster their employee handbooks to address employee conduct that could be damaging and/or disruptive to business and the workplace. It is in stark contrast to some of the controversial employee handbook decisions of the Obama-era Board.