As we reported last December, the NLRB, in The Boeing Company, 365 NLRB No. 154 (2017), reversed its workplace rule standard under Lutheran Heritage. Specifically, instead of assessing whether an employee could “reasonably construe” a workplace rule as barring the exercise of rights under the NLRA, the new test will evaluate the nature and extent of the potential impact on NLRA rights and the legitimate justifications associated with the rule. The results of the new balancing test will place the rule in one of three categories: Category 1 (lawful work rules), Category 2 (work rules that warrant individualized scrutiny in each case), or Category 3 (unlawful work rules).
On June 6, 2018, NLRB General Counsel Peter Robb issued a guidance memorandum which sheds additional light on the Board’s new balancing test and three-category approach. First, the memorandum generally states that Regions must no longer construe ambiguous handbook rules against employers or interpret rules as banning all activities that could possibly be included within the scope of the rule. On the other hand, the memorandum also warns that employers must not use facially lawful rules to prohibit protected concerted activity or to discipline employees engaging in the same.
Significantly, the memorandum provides possible examples of work rules that would fall into each category. For example, Category 1 (lawful work rules) may include rules related to civility, no-photography, no-recording, no defamation, disruptive behavior, insubordination, intellectual property and disloyalty among others. Category 2 (work rules that warrant individualized scrutiny in each case)) may include rules related to conflict-of-interest, confidentiality rules that cover employer business or employee information, disparagement of the employer, speaking to the media, and use of the employer’s name, among others. Category 3 (unlawful work rules) may include rules related to confidentiality of wages, benefits, or working conditions and prohibition of joining outside organizations.
The guidance memorandum can be found here. Of course, because the lawfulness of any employers policy can turn on its specific language and context and because the labor law landscape is constantly evolving, employers should regularly review their workplace rules and policies (and application of such policies) to ensure compliance with the law.