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NLRB General Counsel Issues Much Needed Guidance on Lawful Employee Handbook Provisions

On June 6th newly appointed General Counsel to the National Labor Relations Board, Peter B. Robb, issued comprehensive new guidance on employee handbook provisions. The guidelines direct the Board's Regional Directors throughout the country to reverse course from years of decisions issued by the Board majority appointed by then President Obama. Under the Obama Board numerous workplace rules commonly found in employee handbooks, were declared unlawful. Specifically, a long line of NLRB decisions considered many standard provisions interfered with or restrained employees in exercising their right to engage in "concerted activities" protected by Section 7 of the National Labor Relations Act. The rationale used to justify such an extraordinary expansion of a labor law that has existed since 1947, was based on a hypothetical question: "could" employees interpret a given handbook provision to tamp down their right to strike, or to join together in protest of wages or other terms and conditions of employment? All too often the Board answered this hypothetical question in the affirmative, declaring basic workplace rules on civility, confidentiality, misconduct, etc. violated employee rights. These decisions - and the vague, hypothetical theory on which they were based - left employers in the dark as to what they could include in their employee handbooks without breaking the law. Thankfully, the new guidelines restore the rights of employers to maintain reasonable work rules.

The guidelines break typical handbook provisions into three categories - those likely to be legal, those that might be legal depending on the details, and those that are illegal. Obviously, these categories are to be used merely for general guidance and the legality or illegality of any handbook provision may turn on the specifics; e.g., any provision adopted/implemented, or selectively enforced purely to restrain union organizing or to interfere with other protected rights of employees, is unlawful. Nevertheless, General Counsel Robb's guidelines are extremely helpful to employers and labor attorneys, alike, making handbook drafting much easier and much more predictable when it comes to complying with federal labor law.

Here are the categories and major types of workplace policy the General Counsel has placed in each:

Category 1: Rules that are generally lawful to maintain.

A. Civility rules.

B. No-photography rules and no-recording rules.

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

D. Disruptive behavior rules.

E. Rules protecting confidential, proprietary, and customer information or documents.

F. Rules against defamation or misrepresentation.

G. Rules against using employer logos or intellectual property.

H. Rules requiring authorization to speak for company.

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

Category 2: Rules warranting individualized scrutiny

A. Overly broad conflict of interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union.

B. Confidentiality rules broadly encompassing "employer business" or "employee information" (as opposed to confidentiality rules regarding customer or proprietary information or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions).

C. Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees).

D. Rules regulating use of the employer's name (as opposed to rules regulating use of the employer's logo/trademark).

E. Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer's behalf).

F. Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work).

G. Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

Category 3: Rules that are unlawful to maintain

A. Confidentiality rules specifically regarding wages, benefits, or working conditions.

B. Rules against joining outside organizations or voting on matters concerning employer.

These guidelines are based on a balancing of employer's rights to maintain a safe and productive workplace, through work rules, against the rights of employees to engage in protected, concerted activities. This differs drastically from the Board's decisions in recent years, which emphasized only employee rights and viewed handbook provisions only in the hypothetical (i.e., "could they" restrain employees, not do they). With this in mind, employers are well advised in drafting any workplace policies to ask themselves: why do we need this work rule and what legitimate business purpose does it help accomplish? Answering this question not only helps craft well written, focused handbook provisions on employee conduct, it also supplies the sort of justification the new Labor Board will be willing to consider in determining the lawfulness of any handbook provision, by balancing the employer's and employees' rights.

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QUESTIONS? Contact Attorney James Sherman in our Minneapolis office at (952) 746-1700 or by email at [email protected] or contact the attorneys in our other offices

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