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Dramatic Changes in the NLRB’s Approach to Workplace Civility Rules Affect Union and Non-Union Employers

The National Labor Relations Board (“NLRB” or the “Board”) and its General Counsel have dramatically changed, in favor of employers, the standard that Board agents enforcing the National Labor Relations Act (“NLRA” or the “Act”) will use when determining whether workplace civility rules in human resource policies and employee handbooks violate the Act.  This change affects virtually all employers, because the NLRA governs the workplace rules and employee handbooks of most employers, regardless of whether or not they are unionized.

From 2004 to 2017, the Board reviewed facially neutral civility rules contained in workplace policies and employee handbooks under the standard set in the NLRB’s Lutheran Heritage Village-Livonia decision. In essence, this test asked whether or not the rule in question could be interpreted in a way that interfered with an employee’s rights, under Section 7 of the Act, to engage in concerted protected activity concerning terms and conditions of employment.  This test left most employer rules governing workplace behavior – for both union and non-union employees – subject to attack and invalidation under the NLRA.

In December 2017, the NLRB overruled its standard in Lutheran Heritage with the Boeing decision. In Boeing, the Board held that the relevant question was not whether the workplace rule could interfere with Section 7 rights, but rather whether the rule would interfere with such rights.  This new Boeing standard sought to balance two considerations for each challenged workplace rule: (1) the rule’s negative impact on employees exercising their Section 7 rights, and (2) the employer’s legitimate justifications in maintaining the rule for workplace discipline and civility.

Maintaining pro-employer momentum, on June 6, 2018, NLRB General Counsel Peter B. Robb published his new Guidance Memorandum, expanding on the Boeing standard and providing specific examples of workplace rules and policies that will now pass muster under the NLRA.  The Guidance Memorandum identifies three different categories of workplace rules, providing examples for each category, which we detail below.

Category 1 Rules, according to the Guidance Memorandum, are workplace rules that are generally lawful, as their legitimate purpose outweighs any possibility that they may be interpreted to prohibit employees from exercising their Section 7 rights.  This Category 1 includes:

•    Neutral civility rules, barring rude, offensive, or disparaging language or behavior;

•    Rules banning photography and recording, or devices for photography and recording, from the workplace;

•    Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;

•    Rules banning disruptive behavior, disorderly conduct, or creating disturbances or discord on premises;

•    Rules protecting confidential, proprietary, and customer information or documents;

•    Rules against defamation or misrepresentation;

•    Rules against using the employer’s logo or intellectual property without authorization;

•    Rules requiring authorization to speak on behalf of the company; and

•    Rules banning disloyalty, nepotism, or self-enrichment.

Category 3 Rules are those rules and policies that would be generally unlawful, due to the fact that their adverse impact on employees’ Section 7 rights would outweigh any justification by the employer.  This Category 3 includes:

•    Confidentiality rules specifically prohibiting discussions of wages, benefits, or working conditions; and

•    Rules prohibiting joining outside organizations or voting on matters concerning the employer.

According to the Guidance Memorandum, Category 2 Rules are less clear-cut.  Rather, for this broad list of rules and policies, the General Counsel requires individualized assessment under the new Boeing standard.  This Category 2 includes:

•    Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment (which would fall under Category 1), and do not restrict membership in, or voting for, a union (which would fall under Category 3);

•    Confidentiality rules broadly encompassing “employer business” or “employee information,” rather than those relating to customer or proprietary information (which would fall under Category 1) or those that ban sharing wages, terms of employment, or working conditions (which would fall under Category 3);

•    Rules regarding disparagement of an employer, rather than an employee (which would fall under Category 1);

•    Rules regulating use of the employer’s name, rather than its logo or trademark (which would fall under Category 1);

•    Rules restricting speaking to media or third parties, rather than rules restricting speaking on behalf of employer (which would fall under Category 1);

•    Rules banning off-duty conduct that may be harmful to an employer, as opposed to rules banning insubordination or disruptive workplace conduct (which would fall under Category 1); and

•    Rules against false or inaccurate statements, rather than defamatory statements (which fall under Category 1).

Highlighting the fact that the General Counsel’s new standard employs a balancing of interests test, the Guidance Memorandum explicitly recognizes that some of these rules “clearly would be read to preclude some Section 7 activity.”  The Guidance Memorandum concludes that the ultimate question is “whether the employer’s particular business interest in having the rule outweighs the impact on Section 7 rights.”  To that end, the General Counsel invites the NLRB’s Regions to submit any disputed rule, along with the parties’ positions regarding the rule’s chilling effects and legitimate justifications, to the Board’s Division of Advice, in the absence of any previous application of the Boeing standard to a Category 2 rule.

Employer Tips

The NLRB’s General Counsel’s new Guidance Memorandum should prompt employers to review their current human resource policies and employee handbooks.  The Guidance Memorandum provides to employers an opportunity to refine their rules governing workplace civility and behavior to comply with the new Guidance.  Employers should remain vigilant with regard to two issues: (1) ensuring that any Category 2 rule is wellgrounded in legitimate business considerations, and (2) ensuring that new standards only apply to the “maintenance of facially neutral rules,” rather than to enforcing rules in such a way that would ban protected concerted activity. 

© Copyright 2018 Sills Cummis & Gross P.C.

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About this Author

David I. Rosen, Sills Cummis Gross, Wrongful Dismissal Lawyer, Labor Arbitration Attorney
Member

David I. Rosen has practiced labor and employment law on behalf of management clients since 1977. He handles employment litigation in the federal and state courts, before administrative agencies and through arbitration and mediation, and has broad experience with wrongful dismissal and employment discrimination claims, having successfully defended employers following jury and bench trials. His litigation experience extends to the enforcement and defense of restrictive covenants, NLRB unfair labor practice trials and appellate advocacy. Mr. Rosen also represents employers in labor...

(973) 643-5558
Galit Kierkut, Employment Litigation Attorney, Sills Cummis Gross, Social Media Matters Lawyer
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Galit Kierkut concentrates her practice on employment litigation and counseling. She conducts human resources audits, performs management and employee training in all areas, including sexual harassment, social media and electronic communications use, and counsels clients regarding compliance with state and federal employment laws, including discrimination laws, the Fair Labor Standards Act (FLSA), family and medical leave, and the Worker Adjustment and Retraining Notification (WARN) Act. She also reviews and drafts employee handbooks, social media policies and employment contracts, including restrictive covenants and severance agreements. Her employment litigation practice is primarily focused on resolving claims in the areas of discrimination, sexual harassment, restrictive covenants, whistleblowing and employment contract disputes in state and federal courts and before the Department of Labor and the Equal Employment Opportunity Commission (EEOC).

973-643-5896
Charles Kaplan, Sills Cummis Gross, Labor Employment Attorney, Affirmative Action Matters Lawyer
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Charles H. Kaplan is a Member of the Sills Cummis & Gross Employment and Labor Practice Group and is resident in the Firm’s New York Office.  Mr. Kaplan represents employers in federal and state trial and appellate courts, as well as before enforcement agencies, including the U.S. Equal Employment Opportunity Commission, the National Labor Relations Board, the Office of Federal Contract Compliance Programs of the U.S. Department of Labor, the New York State Division of Human Rights, the New York State Department of Labor and the New York City Commission on Human Rights.

212-500-1563
Philip Portantino, Sills Cummis Law Firm, Newark, Labor and Employment Law Attorney
Associate

Philip A. Portantino is an Associate in the Sills Cummis & Gross Employment and Labor Practice Group.

Mr. Portantino represents and counsels employers in all areas of employment law. His litigation experience in state and federal court covers a broad range of matters, including discrimination, sexual harassment, whistleblower status, retaliation, employment agreements, restrictive covenant and trade secret matters, contract issues, business torts, and wage and hour issues.

Prior to joining the Firm, Mr. Portantino...

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