NLRB: Issues New Guidance on Employee Handbook Rules

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.

Action Items

1. Review the new Guidance here.
2. Have employee handbooks and policies reviewed for compatibility with the new Guidance.
3. 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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