NLRB Is Now More Reasonable About Employee Handbooks | FFS Insights

In March 2015, the General Counsel of the National Labor Relations Board (NLRB) issued a guidance memo that was extremely critical of commonly used employee handbook provisions.  That memo clearly indicated that many of these provisions would be found to unlawfully interfere with employee rights under the National Labor Relations Act (NLRA).

However, with a change in the composition of the NLRB and a more pro-business administration, the NLRB itself changed course beginning with its December 2017 decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).  That decision established a new approach: when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the NLRB will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.  It also announced that, prospectively, three categories of rules would be delineated to provide greater clarity and certainty to employees, employers, and unions, i.e., rules that it designates as lawful, those that warrant individualized scrutiny, and those that unlawful.

On June 6, 2018, the General Counsel issued a new guidance memo that elaborates on the new stance.  The memo summarizes each of these three new categories, gives helpful examples of rules falling within each category, and briefly analyzes the balancing test the NLRB will use as applied to those examples.  The memo also pointedly cautions employers that even a facially lawful policy can be applied in an unlawful manner.

Employers can breathe a sigh of relief that the following kinds of rules will most likely be found to be lawful:

• civility rules;
• no photography/recording rules;
• rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
• disruptive behavior rules;
• 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;
• rules banning disloyalty, nepotism, or self-enrichment.

However, if overbroad, even these rules will merit individual scrutiny or be found to be unlawful.