On June 6, 2018, the National Labor Relations Board’s (Board) General Counsel, Peter Robb, sent a Memorandum to the Board’s regional offices providing guidance on the Board’s current position regarding employee handbook rules.  The General Counsel’s Memorandum comes after the Board’s decision last December in The Boeing Company, 365 NLRB No. 154 (2017), where it formulated to new rule to determine a workplace rule’s legality.  As set forth in that decision, the Board will balance a “rule’s negative impact on employees’ ability to exercise their Section 7 rights [with] the rule’s connection to employers’ right to maintain discipline and productivity in their workplace.”

To provide “greater clarity and certainty to employees, employers, and unions” regarding the legality of work rules, the Board formulated three different categories of such rules:

• Category 1: Rules that are generally lawful;
• Category 2: Rules that warrant individualized scrutiny; and
• Category 3: Rules that are unlawful.

Rules in Category 1 are generally lawful either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of Act rights; or (ii) the potential adverse impact on protected rights is outweighed by business justifications associated with the rule.  According to the General Counsel, the following rules will generally fall in Category 1:

• Civility Rules (e.g., a rule prohibiting “[b]ehavior that is rude, condescending or otherwise socially unacceptable”);
• No-photograph and no-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 Company;
• Rules banning disloyalty, nepotism, or self-enrichment.

Rules in Category 2 are not obviously lawful or unlawful and, therefore, need to be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the Act and, if so, whether any adverse impact on those rights is outweighed by legitimate justifications.  Examples of rules falling into Category 2 include:

• 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 broadly encompassing “employer business” or “employee information;”
• Rules regarding 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.

Rules in Category 3 are generally unlawful because they prohibit or limit conduct protected by the Act, and the adverse impact on such rights outweighs any justifications for the rule.  Examples of rules in Category 3 include:

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

In addition, and to the benefit of employers, the Board further noted that, to the extent there is an ambiguity in a workplace rule, such ambiguity should no longer be interpreted against the drafter.

Given the foregoing, Employers are well-advised to take the General Counsel’s Memorandum into consideration when drafting employee handbooks and other related policies.