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NLRB Continues to Apply Common-Sense Interpretations to Employer Rules

The current National Labor Relations Board (NLRB) continues to provide relief for employers whose workplace rules and policies were under attack from the Board during the Obama administration. Following the line of authority started with its decision in The Boeing Company, 365 NLRB No. 154 (2017), the NLRB continues to review handbook, code of conduct, and other employer rules with a more relaxed, common-sense approach. In Boeing, the Board articulated a new standard for evaluating facially neutral work policies to determine whether, “reasonably interpreted,” such rules would interfere with employee rights’ to engage in protected concerted activity considering: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.” Since the Boeing decision, the NLRB has applied this standard to find lawful a wide range of common employer rules, which the prior NLRB had found unlawful because they could potentially be construed by employees to prohibit certain types of protected activity.

Most recently, in Interstate Management Company, LLC, 369 NLRB No. 84 (May 20, 2020), the Board found lawful provisions in both a hotel management company’s government investigations policy and confidentiality policy. In the underlying decision, an administrative law judge (ALJ) had found the following provisions of the policies unlawful:

  • The government investigations policy’s provision stating that “requests from the police, Internal Revenue Service and other regulatory authorities must not be answered without first obtaining clearance from our Legal Department.”

  • The information protection policy’s provisions that considered “confidential” the names, addresses, telephone numbers, and email addresses of employees and former employees.

In reversing the ALJ’s decision, the NLRB held that neither policy was unlawful based on a balancing of the potential impact on NLRA rights and the legitimate employer justifications for the rules.

Regarding the government investigations policy, the Board found that the most reasonable interpretation of the policy was that it was intended to apply only to investigatory inquiries directed to the employer.  In other words, the policy only prohibited employees from providing answers to government investigators on behalf of the employer without getting clearance from the employer’s legal department. While the policy could potentially be read otherwise, the Board viewed this risk as “slight” and found that the employer’s legitimate justifications outweighed such risk.

As to the information protection policy, the NLRB found that, when looking at the policy as a whole, the confidentiality provisions were directed to protecting the “the Company’s confidential information and information systems,” not information that employees themselves independently possessed. As such, it merely prohibited employees from using the employer’s databases and systems to access such information and share it outside the organization. The Board acknowledged that there was a risk that the policy could be misinterpreted to restrict protected activity, but again found that this risk was “slight” and outweighed by the employer’s legitimate justifications for the rule.

Key Takeaways

Prior to 2017, many employers reviewed and revised their work rules and policies to conform to a wide range of decisions of the NLRB issued during the Obama administration. But the decisions issued by the NLRB since Boeing in late 2017 render lawful a wide range of employer work rules and policies that the prior Board found (or would have found) unlawful. As such, many employers may wish to revisit these issues to consider whether their current rules and policies continue to meet their needs or, rather, might be revised under the relaxed legal restrictions of the NLRB.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 149

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About this Author

Anthony Byergo, Seattle, Ogletree Deakins, Labor and Employment, Collective Bargaining
Shareholder

Mr. Byergo is the managing shareholder of the Seattle office and chair of the firm’s national collective bargaining practice subgroup.  He has more than 25 years of experience representing and advising management in labor and employment matters, and has been honored by publications such as Best Lawyers, Chambers USA, and Super Lawyers

Mr. Byergo handles a full range of traditional labor relations matters, including collective bargaining and strike preparation, representation campaigns, corporate campaigns,  and labor arbitration and unfair labor practice...

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