NLRB Issues New Guidance on Employee Handbooks

On June 6, 2018, the NLRB’s General Counsel issued new guidance on how employee handbook rules and policies would be interpreted, as those rules and policies relate to employees’ rights under the National Labor Relations Act.

The General Counsel’s new guidance stems from its ruling in The Boeing Co., NLRB No. 154 (Dec. 14, 2017).  In the Boeing decision, the NLRB determined that rules that are facially neutral must be analyzed to determine whether they would interfere with employees’ rights under Section 7 – specifically whether the rule, when reasonably interpreted, would interfere with employees’ rights to engage in concerted activity.  Prior to Boeing, if a work rule conceivably could be found to violate the Act, it was deemed unlawful.  The new guidance greatly relaxes that standard.Workplace Desktop - Northbrook, Illinois Employment Attorneys

The memorandum sets out three categories of employee handbook rules.  Category 1 rules are considered lawful because they do not restrict employees’ rights to engage in concerted activity.  Category 2 rules must be analyzed on a case by case basis – that is, how the rules are enforced in practice will determine whether they violate the NLRA.  And finally, Category 3 rules are ones that, on their face, violate the NLRA.

A few examples of each category of rules follows:

Category 1 Rules (These rules are generally permissible):

  • Policies against insubordination;
  • Policies restricting the use of recordings and photography in the workplace;
  • Policies against disruptive conduct in the workplace;
  • Policies protecting the confidentiality of customer information or business documents;
  • Policies prohibiting defamatory statements;
  • Policies banning disloyalty or nepotism.

Category 2 Rules (These rules are considered with respect to how they are enforced):

  • Policies that prohibit employees from speaking to the media or outside parties;
  • Policies that ban off-duty conduct that may harm the employer;
  • Policies that ban disparagement or criticism of the employer;
  • Rules regulating the use of the employer’s name (as distinguished from rules that ban the use of the employer’s logo or trademark);
  • Policies against making false or inaccurate statements (as distinguished from rules against defamatory statements, that fall under Category 1).

Category 3 Rules (These rules are never permissible):

  • Policies that require employees to keep information about their wages, benefits, or working conditions confidential;
  • Rules against joining outside organizations or voting on matters that concern the employer.

Not long ago we discussed the importance of maintaining an up-to-date employee handbook.  This new policy guidance should be a further tool in ensuring that your handbook policies comply with federal law.   As always, we suggest you consult an attorney to discuss the impact of your policies prior to implementation of a new handbook.

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