The Obama-era NLRB sometimes gave employers fits with decisions and guidance concerning employer work rules. It was common for the Obama-era Board to strike down fairly common, neutral work rules, often based on the idea that employees might interpret the rules to restrict employee rights. It did not take long for Trump-era NLRB appointees, however, to put their stamp on National Labor Relations Act law (see our article about some early actions by Trump NLRB appointees). The current members of the NLRB and the NLRB General Counsel are clearly inclined to give employers more latitude when drafting work rules. Following are some examples of the NLRB’s change in direction.
Restricting employee use of computers for solicitation
In its 2014 Purple Communications case, the previous NLRB held that employers may not restrict employees from using company email to solicit for unions, as long as the solicitation is done on non-work time, like breaks or meal time. The new NLRB members are considering a case in which they will have the opportunity to overrule Purple Communications. The case is Caesars Entertainment Corporation, 28-CA-060841. The NLRB has invited interested parties to file briefs on the question of whether the Board should overrule Purple Communications. The NLRB is also interested in whether the Board should extend its ruling in the new case beyond just email systems to other kinds of employee computer usage. Expect employer interest groups to file briefs lobbying heavily for reversal of Purple Communications. Recent actions by the current NLRB and its General Counsel concerning work rules certainly suggest a strong possibility of reversal.
More NLRB guidance on work rules
We reported in December on the Boeing case in which the new NLRB adopted a much more employer-friendly approach to reviewing work rules that might restrict employee rights. In June, Peter Robb, the current General Counsel of the NLRB, issued Memorandum GC 18-04 (the guidance). This memo clarifies how the NLRB will apply its Boeing Company standard to workplace policies in the future.
Here is a brief reminder of what the NLRB did in the Boeing case. In Boeing, the NLRB established a new standard for assessing facially neutral policies. In short, the Board held that, even if an employee could reasonably construe a facially neutral policy to prohibit his or her Section 7 rights, the policy will pass muster if the employer issued it for legitimate reasons and those legitimate reasons outweigh the policy’s impact on the employee’s protected activity. The Board listed three categories of cases that will present employment policies requiring it to engage in such balancing. Category 1 includes rules that the Board will generally designate as lawful to maintain, Category 2 includes rules that will warrant individualized scrutiny to determine the lawfulness of each rule, and Category 3 includes rules that the Board will designate as unlawful to maintain. Unlike the Obama-era NLRB, which would invalidate workplace policies that could be reasonably construed as restricting employees’ Section 7 rights, the Trump-era NLRB has adopted a more employer-friendly standard.
In his June guidance Memo, the NLRB General Counsel clarified how the Board will apply the Boeing standard in the future. For example, the guidance states that the following types of facially neutral rules will fall into Category 1 and generally be deemed lawful by the NLRB:
- Civility rules
- Rules against insubordination, non-cooperation or on-the-job conduct that adversely affects operations
- Disruptive behavior rules
- Rules protecting confidential, proprietary, and customer information or documents
- Rules against defamation or misrepresentation
- Rules against using employer logos or intellectual property
- Rules prohibiting photography, videotaping or audio recording
- Rules against authorization to speak for company
- Rules banning disloyalty, nepotism or self-enrichment
Of course, even a lawful policy such as one prohibiting photography and recording cannot be administered in an inconsistent fashion. For example, employers may not selectively enforce a photography ban against an employee engaged in protected activity, such as talking a photograph to memorialize something the employee thinks is a safety violation, while choosing not to ban photographs by others at the office birthday party.
Mr. Robb’s guidance also gave instruction as to what types of rules will fall into Categories 2 and 3. Category 2 rules are not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications. Often, the legality of such rules will depend on context and additional factors like the placement of the rule among other rules, the kind of examples provided, and the type and character of the workplace. For example, a broadly worded rule against disclosure of all company confidential information might require examination of all the facts to determine if it is intended to or might reasonably be read to ban discussion by employees of their wages, which would be illegal.
Category 3 rules will generally be deemed unlawful because they clearly prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA will outweigh any justifications associated with the rule. Examples of Category 3 rules include:
- Confidentiality rules specifically restricting discussion of wages, benefits or working conditions
- Rules against joining outside organizations or voting on matters concerning the employer
In addition to providing examples for rules that fit into the three categories, Mr. Robb’s guidance instructed NLRB officials to stop interpreting ambiguities in workplace policies against the drafter and to stop construing general policy language as a ban on any activity that could reasonably fall within the policy. For example, if a policy generally bans “disruptive” behavior, the NLRB should not automatically interpret the policy to ban lawful strikes. It should be noted, however, that despite the NLRB’s recent shift to an employer-friendly standard, even a facially neutral policy may not be enforced in a manner that restricts protected concerted activity. For example, a policy that prohibits “disruptive behavior” cannot be interpreted to prohibit an employee from complaining to co-workers about wages or working conditions. Also, as noted above, a neutral policy cannot be enforced selectively against protected conduct like supporting a union or expressing dissatisfaction with the workplace.
With The Boeing Company decision and General Counsel guidance in mind, the door is open for employers to revisit and broaden some of their workplace policies in ways that may not have been permissible under the Obama-era NLRB. Although the Board will still undertake a case-by-case analysis of the lawfulness of such policies, the Trump-era Board will provide employers with more benefit of the doubt than its predecessor and will no longer interpret any ambiguities in the policies against employers.