All Employers Subject to the NLRA
June 6, 2018
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On June 6, 2018, the Office of the General Counsel of the National Labor Relations Board (“NLRB”) issued “Guidance on Handbook Rules Post-Boeing.” The new Guidance elaborates on a December 14, 2017 announcement that sets forth three categories of rules to help define when an employer’s policies violate the National Labor Relations Act (“NLRA”).
Category 1 – Employer policies that the NLRB designates as lawful include:
- Civility Rules – e.g., Behavior that is rude, condescending, or otherwise socially unacceptable” is prohibited; disparaging the company’s employees is prohibited; rude, discourteous, or unbusinesslike behavior is forbidden; or disparaging or offensive language is prohibited.
- No-Photography/No-Recording Rules – e.g., Use of camera-enabled devices to capture images or video is prohibited; employees may not record conversations or company meetings with any recording device without prior approval. The Guidance stated that no-photography and no-recording rules are always lawful; however, a ban on mere possession of cell phones at work may be unlawful.
- Rules Against Insubordination, Non-cooperation, or On-the-job Conduct that Adversely Affects Operations – e.g., being uncooperative with supervisors or otherwise engaging in conduct that does not support the employer’s goals and objectives; insubordination of a manager or lack of cooperation with fellow employees is prohibited.
- Disruptive Behavior Rules – e.g., boisterous and other disruptive conduct; creating a disturbance on Company premises or creating discord with clients or fellow employees. The Guidance notes that a no-disruption rule may not be applied to employees who strike or walk out under protected circumstances.
- Rules Protecting Confidential, Proprietary, and Customer Information or Documents – e.g., Information concerning customers shall not be disclosed or used in any way; do not disclose confidential financial data, or other non-public proprietary company information; no unauthorized disclosure of business secrets or other confidential information. The Guidance distinguishes lawful policies protecting “employee records and documents” from “employee information,” which could fall under Category 2 or 3.
- Rules Against Defamation or Misrepresentation – e.g., Misrepresenting the company’s products or services or employees is prohibited; do not email messages that are defamatory.
- Rules Against Using Employer Logos or Intellectual Property – e.g., 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.
- Rules Requiring Authorization to Speak for the Company – e.g., Employees are not authorized to comment for the employer.
- Rules Banning Disloyalty, Nepotism, or Self-Enrichment – e.g., 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.
Category 2 – Employer policies that warrant individual scrutiny by the NLRB:
- Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment;
- Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to customer or proprietary information);
- Disparagement or criticism of the employer (as opposed to the employee);
- Rules relating to the employer’s name (as opposed to logo/trademark);
- Rules restricting speaking to the media (as opposed to on the employer’s behalf);
- Rules banning off-duty conduct that might harm the employer (as opposed to insubordinate or disruptive conduct at work); and
- Rules banning false or inaccurate statements (as opposed to making defamatory statements).
Category 3 – Employer policies that are unlawful:
- Confidentiality rules specifically regarding wages, benefits, or working conditions; and
- Rules against joining outside organizations or voting on matters concerning the employer.
Although not binding on courts, the Guidance gives employers a sense of what the NLRB will or won’t prosecute. Employers may now have more leeway to implement commonsense policies that do not infringe on employees’ NLRA rights.
- Review the new Guidance here.
- Have employee handbooks and policies reviewed for compatibility with the new Guidance.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
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