The NLRB Issues Clearer Standards for Employee Handbooks

In a previous post, we announced that Christmas came early for employers in 2017 after landmark decisions eradicated Obama-era rules enunciated in Browning-Ferris Industries of California, Inc. and Lutheran Heritage Village-Livonia.

On June 6, 2018, the NLRB provided employers with a much anticipated “Instruction Manual” for navigating post-Boeing waters. In a welcome clarification, the NLRB’s Office of General Counsel issued a Memorandum explaining the standards for evaluating handbook policies under three categories.

The Board’s “Instruction Manual” is meant to apply only to the evaluation of facially neutral rules. Policies that attempt to ban employee activity previously protected by the NLRA will remain protected. As the Board stated, “[a] neutral handbook rule does not render protected activity unprotected.”

Category 1: Rules that are Generally Lawful to Maintain

Rules under this category are presumably lawful. Employers can once again publish and enforce many rules that were once considered uniform across all industries, such as:

• 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 employer; AND
• Rules banning disloyalty, nepotism, or self-enrichment.

Category 2: Rules Warranting Individualized Scrutiny

After Boeing, rules in this category will be evaluated on a case-by-case basis. A reviewing court must analyze and balance the respective interests of both the employee and employer. Employers would be wise to consult counsel before publishing rules such as:

• Confidentiality rules broadly encompassing “employer business” or “employee information;”
• Rules banning disparagement or criticism of the employer;
• Rules regulating use of the employer’s name;
• Rules generally restricting speaking to the media or third parties;
• Rules banning off-duty conduct that might harm the employer; AND
• Rules against making false or inaccurate statements.

Category 3 Rules: Rules that are Unlawful to Maintain

While the Boeing decision was a major victory for employers, the Board made clear that certain rules remain unlawful. In general, the Board outlined two rather broad topics that are presumably unlawful going forward:

• Confidentiality rules specifically regarding wages, benefits, or working conditions; AND
• Rules against joining outside organizations or voting on matters concerning the employer.

After anxiously awaiting further instructions for navigating the post-Boeing seas, employers can now evaluate current handbooks and draft new policies with more certainty.

Law clerk Jacob O'Conner contributed to this post.