Peter Robb, General Counsel for the National Labor Relations Board (NLRB), issued a June 6, 2018 Memorandum reversing prior NLRB guidance and declaring that nine standard employer policies will now be presumed lawful under the National Labor Relations Act.
The Memorandum was based on the Board’s December 2017 decision in The Boeing Company. Before Boeing, the NLRB had taken the position that these policies were unlawful because they could have a “chilling effect” on employees’ exercise of their rights to engage in “protected concerted activity” under Section 7 of the NLRA.
Below are listed nine standard employment policies pronounced legal again (effective immediately); a few that remain subject to heightened scrutiny; and some that are treated on a case-by-case basis.
POLICIES PRESUMED LAWFUL ACCORDING TO THE NLRB GENERAL COUNSEL
No. 1: Civility rules. An expectation of civility does not interfere with employees’ right to engage in protected concerted activity because they can almost always criticize the employer, or individual supervisors, in a civil manner.
No. 2: No photography, no recording. Although there are occasions when employees may want to photograph or record working conditions or labor protests, for the most part, rules prohibiting unauthorized recordings have no impact on Section 7 rights and therefore are lawful. However, “a ban on mere possession of cell phones at work may be unlawful where the employees’ main method of communication during the work day is by cell phone.” In other words, the ban should be on unauthorized recording or videoing, not on possession of a device that can record (absent employer workplace conditions that would make such a restriction reasonable under the circumstances).
No. 3: Bans on insubordination, non-cooperation, or employee’s actions adversely affecting operations.
An employer has a legitimate and substantial interest in preventing insubordination or non-cooperation at work. Furthermore, during working time an employer has every right to expect employees to perform their work and follow directives.
No. 4: Bans on disruptive behavior. Employers have the right to prohibit “fighting, roughhousing, horseplay, tomfoolery, and other shenanigans.” Also, “yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats, or outright violence.”
No. 5: Protecting confidential and proprietary information and customer information. It is legal for an employer to prohibit employees from disclosing confidential and proprietary information. “In addition, employees do not have a right under the Act to disclose employee information obtained from unauthorized access/use of confidential records, or to remove records from the employer’s premises.” To be lawful under the new standard, the employer should ban the unauthorized access or disclosure of confidential employee information rather than disclosure of any employee information.
No. 6: Bans on defamation or misrepresentation. Because “defamatory” statements or “misrepresentations” imply some level of deliberate falsehood or misleading statement, “[e]mployees will generally understand that these types of rules do not apply to subjectively honest protected concerted speech.”
No. 7: Bans on unauthorized use of company logo or intellectual property. “Most activity covered by this [type of] rule is unprotected, including use of employer intellectual property for unprotected personal gain or using it to give the impression one’s activities are condoned by the employer . . ..” because “[e]mployers have a significant interest in protecting their intellectual property, including logos, trademarks, and service marks. Such property can be worth millions of dollars and be central to a company’s business model. Failure to police the use of such property can result in its loss, which can be a crippling blow to a company. Employers also have an interest in ensuring that employee social media posts and other publications do not appear to be official via the presence of the employer’s logo.”
No. 8: Requiring authorization to speak for the employer. “Employers have a significant interest in ensuring that only authorized employees speak for the company.”
No. 9: Bans on disloyalty, nepotism, or self-enrichment. Employers have vested interests in preventing such actions by employees, where the actions do not benefit the employer and confer only a benefit on the employee or a related party.
POLICIES THAT ARE PRESUMED UNLAWFUL
No. 1: Prohibiting employees from discussing or disclosing information about wages, benefits, or other conditions of employment.
No. 2: Prohibiting employees from joining outside organizations or “voting on matters concerning” the employer.
POLICIES REQUIRING CASE-BY-CASE ASSESSMENT
No. 1: Broad conflict-of-interest rules that “do not specifically target fraud and self-enrichment . . ..” Essentially, the conflict-of-interest rule may be vague, so identify what standards will be used to determine whether a conflict exists.
No. 2: Broad or vague “employer confidentiality” rules that don’t focus on confidential and proprietary, or customer, information.
No. 3: Rules prohibiting disparagement of the employer, as opposed to disparagement of employees or customers. During protected-concerted activity, employees often speak disparagingly of their employers, so this rule makes sense in the context of legitimate labor disputes over working conditions or terms of employment.
No. 4: Rules restricting use of the employer’s name, rather than just its logo or trademarks.
No. 5: Rules that prohibit employees from speaking to the media or third parties at all (as opposed to communications to third parties where the employee purports to represent the employer).
No. 6: “Rules banning off-duty conduct that might harm the employer.” A little vague, but the broadness of this policy leaves room for employers to determine off-duty conduct that could damage goodwill and employer/community relations.
No. 7: “Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements) . . ..” Again, a little vague, so it remains to see how this determination should be made, but your best defense is a clear policy.
What do I do to comply with these “new” Rules? CowanPerry PC is available to discuss how these Rules apply to your business and what we can do to make sure your company policies are compliant with these changes. If you have any questions please contact, Eric D. Chapman, one of our Labor and Employment attorneys, at 540.443.3861 or e-mail: echapman@cowanperry.com, and he will be glad to assist you.