In The Boeing Company, the Trump Board set forth a new test to determine whether an employer’s facially neutral workplace rule violates the Act. Under Boeing, the Board divides workplace rules into one of three categories: (1) always lawful; (2) sometimes lawful; and (3) never lawful. In practice, the new test permits employers to enact broad workplace rules that stifle activities protected under Section 7 of the Act.
On June 6, 2018, the NLRB General Counsel issued a memo to Regional Directors providing guidance on handbook rules post-Boeing. According to the Memo, rules that are “always lawful” include: (1) civility rules – including prohibitions on disparaging supervisors and other employees; (2) no-photography and no-recording rules; (3) rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; (4) disruptive behavior rules; (5) rules protecting confidential, proprietary, and customer information or documents; (6) rules against defamation or misrepresentation; (7) rules against using employer logos or intellectual property; (8) rules requiring authorization to speak for the company; and (9) rules banning disloyalty, nepotism, or self-enrichment.
The General Counsel also listed possible examples of rules that are, depending on the context, “sometimes lawful.” The General Counsel’s examples include: (1) rules regarding disparagement of the employer (as opposed to rules regarding disparagement of employees); (2) rules regulating use of the employer’s name (as opposed to employer’s logo/trademark); and (3) rules against making false or inaccurate statements (as opposed to making defamatory statements).
The memo provided just two examples of rules that are unlawful to maintain: (1) confidentiality rules specifically regarding wages, benefits or working conditions; and (2) rules against joining outside organizations or voting on matters concerning the employer.
The General Counsel’s memo
reiterates that even when a rule is “always lawful” or “sometimes lawful” on
its face, the application of such
rules can still violate the Act.
 The Boeing Company, 365 NLRB No. 154, 210 LRRM (BNA) 1433 (Dec. 14, 2017).
 NLRB General Counsel Memorandum, 18-04 (June 6, 2018).