NLRB Provides Guidance on a Multitude of Workplace Rules

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Generally applicable to all employers – union and non-union alike – the National Labor Relations Board issued several decisions this month that explored what it deemed to be permissible and impermissible workplace rules under the National Labor Relations Act.

In The Boeing Company (which we discussed in detail in a December 2017 E-lert), the Board set out a new standard for determining whether a facially neutral work rule, reasonably interpreted, would unlawfully interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the NLRA to engage in concerted activities for the purpose of mutual aid or protection. The Board divided workplace rules into three categories, depending on whether they: (1) are lawful, either because (a) when reasonably interpreted, they do not prohibit or interfere with the exercise of protected rights or (b) the potential adverse impact on protected rights is outweighed by the employer’s legitimate business justifications; (2) warrant individualized scrutiny; or (3) are unlawful under the NLRA.

In Motor City Pawn Brokers, Inc. and G&E Real Estate Management Services, Inc., the Board found the following rules to be lawful:

  • Rules prohibiting the disclosure of confidential information, which contained numerous examples of the types of obviously proprietary information at issue. Thus employees would reasonably understand the rules to prohibit the disclosure of legitimately confidential and proprietary business information rather than information pertaining to their terms and conditions of employment. (Category 1(a))
  • Rules establishing employee standards of conduct, specifically prohibiting conduct including inappropriate language, badmouthing, spreading rumors, bullying, and “conduct which is detrimental to our goals.” The Board found these to be “commonsense, facially neutral rules” requiring employees “to foster harmonious interactions and relationships in the workplace and adhere to basic standards of civility.” (Category 1(a))
  • Rules prohibiting disparagement of the employer, including statements or conduct, including while off-duty, that cause injury to the employer’s reputation, business and standing in the community. Although such rules could interfere with employees’ Section 7 rights, that was outweighed by the employer’s legitimate business justifications (which the Board broadly found to be “self-evident” despite not being actually articulated by the employer). (Category 1(b))
  • Rules limiting employee use of the Internet, by restricting use of the Internet for business purposes only. The Board stated that there was no protected right to use the employer’s resources to access the Internet. (Category 1(a))
  • Rules limiting employee social media activity, by prohibiting disclosure of sensitive and proprietary information on social media in one case, and by more broadly limiting what employees could say on social media in the other. The restrictions in the first case were limited to obviously proprietary information and would not prohibit disclosure of information about employees’ protected activities. In the second case, the restrictions clearly applied where the employee was speaking on behalf of the company, while other parts of the rule make it clear that personal social media activity is not prohibited. (Category 1(a))
  • Rules providing for discipline for frivolous/false complaints of harassment, as it is clear that employees would not be disciplined for innocent factual errors, and therefore there was no interference with their Section 7 rights. (Category 1(a))
  • Rules limiting outside business relationships, such as other employment or business activities, with examples provided in the policy. The Board found such rules, which are “common,” ensure regulatory compliance and aim to prevent conflicts of interest from outside work activities. (Category 1(a))
  • Rules about requests for references and employee information, which require all such requests to be forwarded to Human Resources and prohibit company employees from providing such information without permission. Such rules would not be read to prohibit protected communications about wages or other terms and conditions of employment. (Category 1(a))
  • Rules restricting use of company property for the company’s benefit and business purposes, which the Board found to be a general declaration of the employer’s property rights and not a blanket prohibition of solicitation or other protected activity. (Category 1(a))
  • Rules restricting outside speaking and writing activities relating to the Company to those for which prior approval has been obtained. The Board found that this policy would be reasonably interpreted to pertain only to professional speaking or writing engagements that could be viewed by the audience as speaking on behalf of the Respondent and not as applying to speaking at a union meeting or other protected activity. (Category 1(a))

The following rules were found to be unlawful:

  • Rules making arbitration the exclusive method of resolving any statutory claim, without exception, as they interfere with employees’ rights to file charges with the Board, to participate in Board processes, or to access the Board’s processes.
  • Provisions requiring employees to indemnify the employer for costs and fees of any claims arising from a breach of the employees’ employment agreements, by imposing prohibitive financial burdens on employees.
  • Provisions designating the employee handbook to be confidential and prohibiting its disclosure.
  • Rules that interfere with employees’ rights to communicate with, associate with, or solicit other employees, without exceptions for non-work time or non-work areas.

Notably, the Board left open the question of whether the employer’s restriction of email to business use only was permissible in light of its recent Caesars Entertainment decision, in which it stated that “an employer does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other.” (Emphasis added. We discussed this decision in detail in a December 18, 2019 E-lert). The Motor City Pawn Brokers parties had not addressed whether this exception applied.