In The Boeing Company,[1] 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.[2] 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.
[1] The Boeing Company, 365 NLRB No. 154, 210 LRRM (BNA) 1433 (Dec. 14, 2017).
[2] NLRB General Counsel Memorandum, 18-04 (June 6, 2018).