Back in December, Beth West informed our readers that the NLRB had issued new (and more realistic) guidelines for evaluating whether employment policies and rules violate the National Labor Relations Act (“NLRA”). As a reminder, the NLRB issued a new two-prong test for determining if facially neutral employment policies could interfere with the exercise of NLRA rights, evaluating: (1) the nature and extent of the potential impact on NLRA rights, and (2) the legitimate justifications associated with the rule.
The National Labor Relations Board’s General Counsel recently issued a memorandum (the “Memo”) providing guidance as to how the NLRB will enforce workplace policies, in light of that decision. The Memo evaluates common workplace rules to assess whether or not such rules may be permissible, evaluating the rules under three main categories: (1) lawful to maintain; (2) warrant individualized scrutiny; and (3) unlawful to maintain.
Category 1: Rules that are Generally Lawful to Maintain.
According to the Memo, 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 Act, or because the potential adverse impact on protected rights is outweighed by the business justifications associated with the rule.” The following rules were identified as being “generally lawful to maintain”:
*Rules against insubordination, non-competition, 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 on the employer’s behalf
*Rules banning disloyalty, nepotism, or self-enrichment
Category 2: Rules that Warrant Individualized Scrutiny.
Category 2 rules are explained as rules that “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.” It lists possible examples of Category 2 rules to be:
*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 referring to “employer business” or “employer information” (as opposed to prohibiting use of customer or proprietary information
*Rules relating to an employee’s use of the employer’s name (as opposed to use of the employer’s logo/trademark)
*Rules generally restricting an employee’s ability to generally speak to the media or third parties (as opposed to prohibiting speaking on behalf of the employer)
*Rules banning off-duty conduct that might harm the employer (as opposed to activity that causes a disruption in the workplace)
*Rules against making false or inaccurate statements (as opposed to defamatory statements)
Category 3: Rules that are Unlawful to Maintain.
The Memo states that “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.” It specifically notes that (1) confidentiality rules specifically regarding wages, benefits, or working conditions; or (2) rules against joining outside organizations or voting on matters concerning the employer are prohibited.
Employers should review their employment policies to ensure compliance with this updated guidance. Weintraub’s Labor & Employment attorneys have extensive experience counseling and auditing employee handbooks. Please contact any member of our team for assistance in updating your policies.