Late last year the National Labor Relations Board (NLRB) unveiled a new, employer-friendly guide on how to bring your policies and handbook provisions into compliance with the National Labor Relations Act (the “Act”). By identifying three categories of rules: (i) rules that are generally lawful; (ii) rules that require case-by-case analysis; and (iii) rules that are facially unlawful, the NLRB put employers on notice of their standards for these provisions going forward. More recently, in June, the general counsel for the NLRB went one-step further, offering guidance on how to interpret the Board’s decision in Boeing, and providing helpful examples of rules falling into each of the three different categories:
Category 1 Rules (lawful), which includes things like:
• Civility rules (such as “disparaging, or offensive language is prohibited”);
• Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; and
• Rules protecting confidential, proprietary, and customer information or documents.
Category 2 Rules (TBD on case-by-case basis), which includes things like:
• 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;
• Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees); and
• Rules banning off-duty conduct that might harm the employer.
Category 3 Rules (unlawful), which includes things like:
• Confidentiality rules specifically regarding wages, benefits or working conditions; and
• Rules against joining outside organizations or voting on matters concerning the employer.
If you would like additional information regarding whether your handbook is in compliance with the Act (or whether you can/should change your policies in light of this guidance), please do not hesitate to contact me.
Contact info: Meredith S. Campbell Chair, Employment and Labor Group, Shulman Rogers mcampbell@shulmanrogers.com | T 301.255.0550 | F 301.230.2891
