New Guidelines For Employee Handbooks

On June 6, 2018, the Office of General Counsel for the National Labor Relations Board (“NLRB”) issued a Memorandum concerning the NLRB’s review of employee handbook rules based on the December 2017 decision in The Boeing Company, 365 NLRB No. 154 (“Boeing”).  The Boeing decision adopted a new test for evaluating work rules or policies which might arguably interfere with employees’ statutory right to engage in “concerted activity” under the National Labor Relations Act (“NLRA”).  Under the prior test, even a neutral rule or policy could violate the NLRA if an employee would “reasonably construe” the rule or policy to prohibit concerted activity.  Under the Boeing test, the NLRB balances the impact a reasonably interpreted, facially neutral rule may have on employees’ rights with an employer’s business justification for the rule or policy.

General Counsel’s recent Memorandum provides employers with guidance on the legality of handbook rules under the Boeing test by breaking down such into the following categories:

  1. Those rules that are generally lawful to maintain.
  2. Those rules warranting individualized scrutiny.
  3. Those rules that are unlawful to maintain.

Complaints regarding rules in the first category will be dismissed by the NRLB.  The rules in this category include civility rules, no-photography/recording rules, insubordination rules, disruptive behavior rules, rules prohibiting the use of employer trademarks or logos, rules against the disclosure of confidential, proprietary and customer information, defamation rules, rules prohibiting employees from responding to media requests or commenting on behalf of the employer, and disloyalty, nepotism and self-enrichment rules.  Specifically included in this category of generally lawful rules are several rules which the NLRB under the prior administration found unlawful, including the following examples:

  1. Rules prohibiting the disparagement of the company’s employees generally.
  2. Rules against recording conversations, phone calls, images or company meetings.
  3. Rules banning boisterous and other disruptive conduct.
  4. Rules banning the use of the company’s logo without prior written approval.

Complaints regarding rules in the third category that are considered per se unlawful will result in the NLRB issuing complaints unless there is a special circumstance.  This category includes rules that require confidentiality regarding wages, benefits or working conditions and rules against joining outside organizations or voting on matters concerning the employer.

All other rules are in the second category and evaluated on a case by case basis. Under Boeing, the NLRB will no longer find a rule unlawful simply because it could be reasonably construed to prohibit a right under the National Labor Relations Act.  According to General Counsel, some examples of rules in this category are rules that prohibit any criticism of the employer, broad confidentiality rules which are not focused on proprietary information, and rules which completely restrict an employee from speaking to the media or third parties.

It is important for employers to revisit their Employee Handbooks and consider revising these Handbooks based on the new guidance. If your business would like more information regarding the new rules or would like to update its Employee Handbook, you should contact a member of Archer & Greiner’s Labor and Employment Group in Haddonfield, N.J. at (856) 795-2121; Philadelphia, Pa. at (215) 963-3300; Princeton, N.J. at (609) 580-3700; Hackensack, N.J. at (201) 342-6000; or Wilmington, Del. at (302) 777-4350.