The NLRB General Counsel has issued a Guidance Memorandum laying out how NLRB Regional Offices receiving claims of improper employment policies are to interpret employer workplace rules. This follows the NLRB’s ruling that established a much more employer-friendly standard for the lawfulness of employee work rules. The memo directs Regional Offices to no longer interpret ambiguous rules against the drafter or generalized provisions as banning all activity that could conceivably be included within the rule. Regional Offices will now look to whether a rule would be interpreted as prohibiting Section 7 activity, as opposed to whether it could conceivably be so interpreted.
The NLRB established a new standard that focuses on the balance between the rule’s negative impact on employees’ abilities to exercise their rights and the rule’s connection to an employer’s right to maintain discipline and productivity in the workplace. Work rules are to be categorized in three categories: (1) rules that are generally lawful to maintain; (2) rules warranting individualized scrutiny; and (3) rules that are plainly unlawful to maintain. The Memo places a number of commonly found workplace policies into these three groupings.
Category 1 Rules are generally lawful either because the rule, reasonably interpreted, does not prohibit or interfere with the exercise of rights guaranteed by the NLRA, or because the potential adverse impact on protected rights is outweighed by associated business justifications. Examples of types of rules that fall into this category include:
Civility rules like disparaging, or offensive language is prohibited;
No-photography and no-recording rules;
Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
Disruptive behavior rules like creating a disturbance on company premises or creating discord with clients or fellow employees is prohibited;
Rules protecting confidential, proprietary, and customer information or documents;
Rules against defamation or misrepresentation;
Rules against using employer logos or intellectual property;
Rules requiring authorization to speak for the company; and
Rules banning disloyalty, nepotism, or self-enrichment.
Category 2 Rules are not obviously lawful or unlawful, and must be evaluated case-by case to decide whether the rule would interfere with guaranteed rights whether any adverse impact on those rights is outweighed by legitimate justifications. Examples of Category 2 Rules 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 on customer or proprietary information, or more specifically directed at employee wages, terms of employment, or working conditions);
Rules on disparagement or criticism of the employer;
Rules about using the employer’s name (not a logo or trademark);
Rules generally restricting speaking to the media or third parties (not limited to speaking to the media on the employer’s behalf);
Rules banning off-duty conduct that might harm the employer (not rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations); and
Rules against making false or inaccurate statements (not defamatory statements).
Category 3 Rules are generally unlawful because they would prohibit or limit protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule. Examples of the types of rules that fall into this category include:
Confidentiality rules specifically regarding wages, benefits, or working conditions; and
Rules against joining outside organizations or voting on matters concerning the employer.
Employers had been hesitant to prohibit employee conduct when writing handbook rules for fear the rules could be construed as infringing on employee rights. Significantly, the memo expressly says regions will not interpret ambiguities in rules against the drafter.