In our previous posts regarding the NLRB’s decision in The Boeing Company, we discussed the old standard for analyzing work rules set under Lutheran Heritage Village-Livonia, how the NLRB found that standard unwieldy and difficult to apply in many situations, and the three categories of work rules the NLRB created to allow for three different levels of scrutiny and analysis.
You can find our first two posts here: http://wiley-law.com/the-nlrb-considers-the-employers-perspective/.
and here: http://wiley-law.com/the-boeing-company-part-ii-the-employer-strikes-back/.
Today, we’ll go over the NLRB General Counsel’s guidance for Regional Directors, Officers-in-Charge, and Resident Officers of the NLRB for analyzing handbook rules post-Boeing.
First and foremost, the General Counsel advised staff that “Regions should now note that ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.” Basically, what this means is that ALJs should not always assume the worst in employers when analyzing rules.
The General Counsel also advised that the new standard only applies to “facially neutral” rules, and not those rules that specifically ban protected activities or are created in response to organizing or other protected activities. Furthermore, just because a rule is lawful or facially neutral, does not mean that your enforcement of a rule cannot be deemed unlawful. Employers need to be fair in applying their rules to their employees. If you only choose to enforce one of your rules in the face of Section 7 activity, you will be found in violation of the Act, no matter how well you can justify the rule.
As a reminder, the three categories of rules are as follows: Rules that are Generally Lawful to Maintain; Rules Warranting Individualized Scrutiny; and Rules that are Unlawful to Maintain. Below are examples of each, which were provided by the General Counsel.
Rules that are Generally Lawful to Maintain
- Civility Rules – bans on conduct that is detrimental to patient care or that impedes harmonious interactions and relationships; behavior that is rude, condescending or otherwise socially unacceptable; negative or disparaging comments about the abilities of employees; rude, discourteous or un-businesslike behavior; disparaging or offensive language;
- No-Photography Rules and No-Recording Rules – including bans on cameras and recording conversations in person or over the telephone without advance approval;
- Rules Against Insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
- Disruptive Behavior Rules – including boisterous and other disruptive conduct; creating a disturbance on company premises or creating discord with clients or co-workers; or disorderly conduct on the premises;
- Rules protecting confidential, proprietary, and customer information or documents
- Rules against Defamation or Misrepresentation – making intentionally false and disparaging statements, or false statements with an intent to deceive or be unfair;
- Rules against using employer logos or intellectual property;
- Rules requiring authorization to speak for the company; and
- Rules banning disloyalty, nepotism, or self-enrichment.
Rules Which Would “Warrant Individualized Scrutiny”
There are rules that are neither obviously lawful nor unlawful, but would warrant a balancing test of the legitimate justifications for the rules against the impact on Section 7 rights. This is a fact-based test that evaluates the rule in the context of the employer’s business.
- Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment;
- Broad confidentiality rules;
- Rules regarding disparagement or criticism of the employer;
- Rules regulating the use of the employer’s name;
- Rules generally restricting communication with the media or third parties;
- Rules banning off-duty conduct that “might harm the employer;” and
- Rules against making false or inaccurate statements.
One difference that needs to be drawn out between the first two categories is that rules prohibiting negative or disparaging remarks about employees of the company will be given the presumption of being legal, while rules prohibiting negative or disparaging remarks about the employer will be put through the balancing test to determine the employer’s interests in prohibiting such remarks.
Rules that are Unlawful to Maintain
Below are rules that will generally be considered as prohibiting or limiting Section 7 activity, and would have a severe impact on employee rights.
- Confidentiality rules specifically regarding wages, benefits, or working conditions; and
- Rules against joining outside organizations or voting on matters concerning the employer.
There will definitely be exceptions to every rule, and employers are advised not to abuse these rules or specifically target enforcement of rules at employees who are critical of working conditions or involved in organizing. For public employers in Minnesota, you may see an uptick in unfair labor practice complaints by unions in effort to demonstrate their usefulness to employees, and attacking work rules they view as unfavorable could be their way of doing so. However, the guidance provided by the General Counsel is an excellent guide for employers in drafting work rules they can enforce even-handedly without fear of repercussions from employees or their representatives.