March 20, 2019

March 19, 2019

Subscribe to Latest Legal News and Analysis

March 18, 2019

Subscribe to Latest Legal News and Analysis

NLRB Handbook Rules Change Like the Wind Post-Boeing

On June 6, 2018, the Office of the General Counsel of the National Labor Relations Board (the “NLRB” or the “Board”) published its most recent memo concerning employer handbook policies. The memo’s guidance reflects a stark shift by the NLRB away from its largely employee-friendly stance on employer policies. 

Why the Change?

In March 2015, the Office of the General Counsel issued guidance on the types of handbook employment policies the General Counsel would continue to consider an unlawful infringement on employee rights protected by the National Labor Relations Act (“NLRA”). During the Obama administration, various Board decisions found that many facially neutral employee handbook rules were unlawful because they could be “reasonably construed” by employees to infringe on their rights to engage in protected concerted activity. The General Counsel quietly withdrew guidance issued by his predecessor on December 1, 2017. On December 14, 2017, the NLRB laid out a new approach to these cases in The Boeing Company, 365 NLRB No. 154.

In Boeing, the Board analyzed previous decisions regarding the legality of employer handbook rules and held that its previously articulated “reasonably construe” standard created “rampant confusion” and prevented the Board from giving “meaningful consideration to the real-world complexities associated with employment policies.” Emphasizing the need for “common sense,” the Board held that going forward, employer rules would be assessed as falling into one of three categories: first, generally lawful rules that, if reasonably interpreted, do not interfere with the exercise of NLRA rights; second, rules that warrant “individualized scrutiny” as to whether any adverse impact on employee rights is outweighed by legitimate justifications; and third, rules that are generally unlawful because they limit conduct protected by the NLRA.

What Has Changed?

The June 6, 2018 memo lays out the General Counsel’s interpretation of Boeing. The memo is not binding as a case decision would be, but it provides insight into how the new General Counsel will exercise his authority when making decisions to prosecute and dismiss charges on handbook policies without a hearing. Until the NLRB decides more cases, the memo is the most detailed guidance available on where the NLRB’s new direction will take that law.

The memo sets forth the following:

  • rules in the first category that generally are lawful include those requiring civility and authorization to speak on behalf of the employer and preclude the disclosure of confidential customer information;

  • rules in the second category that warrant “individualized scrutiny” include, for example, those regulating off-duty conduct, confidentiality and conflicts of interest; and

  • rules in the third category that remain unlawful are those against joining outside organizations or that require employees to keep the terms and conditions of their work confidential.

What Should Employers Do? 

Employers are encouraged to review their handbook policies to see where they might be able to articulate stronger expectations regarding, in particular, rules which may fall into category one, and where they may need to revise their policies regarding confidential and/or proprietary information (which could fall into any of the articulated three categories). In doing so, employers will need to consider the specifics of the memo’s guidance, new decisions on this topic coming from the Board almost every month, as well as the myriad of other recent developments impacting employer policies, including the General Data Protection Regulation (GDPR), publicity surrounding the #MeToo movement and new state laws legalizing the off-duty use of marijuana.

© 2019 Vedder Price


About this Author

Elizabeth N. Hall, Vedder Price Law Firm, Labor Employment Attorney

Elizabeth N. Hall is a shareholder  in the firm’s Labor and Employment Practice Area.  Her experience includes defending employers before state and federal courts and administrative agencies in all types of individual employee and class action labor and employment litigation including equal employment opportunity, wrongful and retaliatory discharge and wage and hour issues.  Ms. Hall has successfully argued procedural and employment discrimination issues in the United States Court of Appeals for the Seventh Circuit, and has particular expertise managing electronic discovery in complex...

Caralyn M. Olie, Vedder Price, Age Discrimination Lawyer, Employment Policy Drafting Attorney

Caralyn Olie is an associate in the Labor & Employment practice group. She represents management in all areas of employment law, including claims under Title VII, the Americans with Disabilities Act and the Age Discrimination in Employment Act. She defends employers in state and federal court and before the NLRB, EEOC and Illinois Department of Human Rights. Ms. Olie also counsels employers on all aspects of employment law. 

Ms. Olie graduated in 2008 from Cornell University, where she earned a Bachelor of Science in Industrial and Labor Relations. After graduating from Cornell, Ms. Olie worked in the Human Resources Department of Morgan Stanley in New York.

(312) 609 7796
Kenneth F. Sparks, Vedder Price Law Firm, Labor employment attorney

Kenneth F. Sparks is a shareholder with over 20 years of experience in labor and employment matters.  He represents and advises private and public employers in complicated labor law and litigation matters nationwide. Among his areas of concentration are union organizing and collective bargaining, including development and implementation of integrated responses to all of the litigation, publicity, and strike matters that can and often do become a part of organizing and collective bargaining.  He has negotiated numerous collective bargaining agreements, tried cases before the National Labor...