New Legal Guidance for HR Professionals on Handbooks & Workplace Rules
By Kevin M. Mosher • Jul 19, 2018
NLRB PROVIDES HELPFUL ADVICE TO HR
On June 6, 2018, the National Labor Relations Board’s (NLRB) general counsel issued a memorandum providing guidance on how the NLRB’s regional offices should apply a new standard when considering unfair labor practice charges concerning work rules and handbook policies. The NLRB’s decision in The Boeing Company was issued on December 14, 2017, is the center of the general counsel’s memo and notes the new standard focuses on the balance between a work rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline and productivity in their workplace.
The general counsel’s memo noted the Boeing decision created three categories in which to place employment policies, rules, and handbook provisions under the new standard. However, the memo also noted that further clarification of these categories would be beneficial in determining whether employers’ rules unlawfully encroach on employees’ protected rights or if there is legitimate justification for an employer to implement such rules. While the memo provides an in-depth description for each sub-category, here is a general overview:
CATEGORY 1: RULES LAWFUL TO MAINTAIN
a. Civility rules
b. No photography rules and no-recording rules
c. Rules against insubordination, non-cooperation or on the job conduct that adversely affects operations
d. Disruptive behavior rules
e. Rules protecting confidential, proprietary, and customer information or documents
f. Rules against defamation or misrepresentation
g. Rules against using employer logos or intellectual property
h. Rules requiring authorization to speak for company
i. Rules banning disloyalty, nepotism or self-enrichment
CATEGORY 2: RULES WARRANTING INDIVIDUALIZED SCRUTINY
a. Broad conflict of interest or confidentiality rules
b. Rules prohibiting disparagement of employer
c. Rules prohibiting use of employer’s name
d. Rules restricting employees from speaking to the media generally
e. Rules banning off-duty conduct that would harm employer
f. Rules prohibiting making false statements
CATEGORY 3: RULES UNLAWFUL TO MAINTAIN
a. Confidentiality rules specifically regarding wages, benefits or working conditions
b. Rules against joining outside organizations or voting on matters concerning employer
EMPLOYERS NOW HAVE A GLIMPSE INTO NLRB’S DECISION MAKING PROCESS
While The Boeing decision and the NLRB’s guidance memo offered additional guidance, the three categories offered the most help to employers in implementing their workplace rules, policies and handbook provisions. Not only can the categories be used as guidelines for implementation or revision of rules going forward, but they also provide employers with a look into the decision-making process if they ever find themselves in front of the NLRB board.
If you would like a copy of the NLRB decision and memo or would like to discuss how to revise or draft your handbook provisions or workplace rules and policies, please contact your Thompson Coe attorney at (651) 389-5000 or at myHRgenius@thompsoncoe.com. You can also find helpful information and resources at https://myhrgenius.co/.
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