Earlier this month the National Labor Relations Board (NLRB) issued new guidance on handbook rules. Specifically, the NLRB General Counsel issued a memorandum to the Regions that provides general guidance about the placement of various types of rules—broken into the three categories.
Category 1: Rules that are generally lawful to maintain
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 National Labor Relations Act (NLRA), or because the potential adverse impact on protected rights is "outweighed by the business justifications" associated with the rule. Charge allegations alleging that rules in this category are facially unlawful should be dismissed, absent withdrawal. The memo provides examples of Category 1 rules that include several general types and specific examples of what is deemed acceptable. The following types of rules fall into this category:
- Civility rules.
- No-photography and no-recording rules.
- Rules against insubordination.
- Non-cooperation, or on-the-job conduct that adversely affects operations rules.
- 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.
Category 2: Rules warranting individualized scrutiny
The 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. Examples of possible 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 regarding customer or proprietary information, or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions).
- Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees).
- Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark).
- Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf).
- Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations).
- Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).
Category 3: Rules that are unlawful to maintain
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. The memo lists in this category:
- Confidentiality rules specifically regarding wages, benefits, or working conditions.
- Rules against joining outside organizations or voting on matters concerning the employer.
Key Takeaway for Members
This guidance provides employers with a helpful roadmap for navigating the NLRB’s more employer-friendly and commonsense approach to how a Regional Office will interpret an unfair labor practice charge. The memo makes clear that ambiguities in rules should no longer be interpreted against the employer and generalized provisions should not be interpreted as banning all activity that could conceivably be included. Clearly, the pendulum at the NLRB has swung back to the pre-Obama era where the Board will apply a more balanced approach to the realities of running an effective workplace and the Section 7 rights of employees.
If your organization determines your handbook policies need a review or an overhaul, consider using MRA’s Handbook Services to serve as an extra set of hands to help get this completed.
Source: CCH/Wolters Kluwer, NLRB.gov, Michael Hyatt, Director, HR Government Affairs, MRA – The Management Association