HR Tip: NLRB General Counsel issues guidance on employer handbook rules

On June 6, 2018, the National Labor Relations Board General (NLRB) Counsel issued GC Memorandum 18-04, Guidance on Handbook Rules Post-Boeing. The guidance groups the rules into three categories: Category 1 rules are generally lawful, Category 2 rules require an evaluation of the rule on a case-by-case basis using the Boeing standard, and Category 3 rules are unlawful to maintain.

Category 1

During the Obama period, the NLRB was very strict in interpreting employee handbook policies for union and non-union employers. Many rules that would have been scrutinized by the Board are now generally lawful, including:

• Civility rules. "Behavior that is rude, condescending or otherwise socially unacceptable is prohibited" is an example of a lawful civility rule.
• No-photography rules and no-recording rules. Rules that ban employees from taking photos, videos, or recorded conversations at work are lawful.
• Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations. "Being uncooperative with supervisors . . . or otherwise engaging in conduct that does not support the Employer's goals and objectives is prohibited" is an example of a lawful insubordination rule.
• Disruptive behavior rules. Disorderly conduct or other bad behavior that disrupts business operations can be prohibited.
• Rules protecting confidential, proprietary, and customer information or documents. Rules banning the discussion of confidential, proprietary, or customer information are generally lawful. Note: this would not extend to the discussion of employee or wage information.
• Rules against defamation or misrepresentation. "Misrepresenting the company's products or services or its employees is prohibited" is a lawful rule.
• Rules against using employer logos or intellectual property. "Employees are forbidden from using the Company's logos for any reason" is an example of a lawful rule.
• Rules requiring authorization to speak for company. A handbook rule requiring authorization to speak for the company or requiring that only certain persons speak for the company is generally lawful.
• Rules banning disloyalty, nepotism, or self-enrichment. "Employees may not engage in conduct that is disloyal . . . competitive or damaging to the company such as illegal acts in restraint of trade or employment with another employer" is an example of a lawful rule.

Category 2

These rules require individualized scrutiny under the Board's Boeing framework:

• 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 that encompass "employer business" or "employee information."
• Rules prohibiting disparagement of the employer (as opposed to coworkers).
• Rules prohibiting or regulating use of the employer's name (as opposed to the employer's logo/trademark).
• Rules restricting employees from speaking to the media generally (as opposed to on the employer's behalf).
• Rules banning off-duty conduct that would harm the employer (as opposed to insubordinate/disruptive behavior at work).
• Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

Category 3

These rules are specifically banned:

• Confidentiality rules regarding wages, benefits, or working conditions.
• Rules that prohibit joining outside organizations or that require employees to refrain from voting on matters concerning the employee.

As a best practice, employers should always seek legal counsel when revising its employee handbook.