Seyferth Blumenthal & Harris > Uncategorized > Pick a Number Between 1 and 3: New Handbook Guidance from the NLRB General Counsel

Pick a Number Between 1 and 3: New Handbook Guidance from the NLRB General Counsel


Do you remember back in 2015 when you heard that employers could no longer require, among other things, employees to be civil to each other because it violated labor law? A previous memorandum from the National Labor Relations Board indicated as much.

That has changed.

Section 7 of the National Labor Relations Act guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” Section 8(a)(1), which generally applies to all employers, of the NLRA makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA.

Former NLRB General Counsel Richard Griffin introduced detailed guidance in 2015 about types of handbook provisions and policies that violated Section 7 and 8 of the NLRA. The current NLRB and new NLRB General Counsel Peter Robb have rolled back much of Griffin’s guidance and the case that he relied heavily on when issuing that guidance.

In December 2017, the NLRB overturned the rule that even if an employer policy did not explicitly restrict union activity, it could violate Section 7 of the NLRA if “employees would reasonably construe the language to prohibit Section 7 activity” in a legal matter involving The Boeing Co. The NLRA announced a new rule to gauge whether a neutral policy violates employees’ NLRA rights.

This new rule analyzes two things: (1) the nature and extent of the potential impact on NLRA rights; and (2) the legitimate justifications for the neutral policy.

The NLRA also announced that employment policies fall into three categories. “Category 1” are rules that are generally lawful to maintain. “Category 2” are rules that warrant individual scrutiny. “Category 3” are rules that are unlawful to maintain. Current NLRB General Counsel Peter Robb crafted a 21-page memorandum providing employers with guidance on the three categories that the NLRB discussed in its recent opinion.

For practical purposes, these categories will help employers gauge whether their policies comply with the NLRA. Below is a summary of Robb’s guidance on each category.

Lawful? Examples Rationale
Civility Generally, yes. Policies that prohibit disparaging, rude, discourteous, unprofessional, or offensive words or conduct. These policies foster harmony and prevent harassment, violence, and conflict.
No Photography or Recording Generally, yes. Policies prohibiting recording conversations, phone calls, images, or company meetings with any recording device without approval. These policies protect security, property, proprietary and confidential information, and maintain the integrity of the employer’s operations.
Insubordination, Non-Cooperation, and Other Conduct that Adversely Affects Operations Generally, yes. Policies prohibiting employees from being uncooperative with supervisors or engaging in conduct that does not support the employer’s goals and objectives. These policies foster cooperation and advance the employer’s right to expect employees to perform their work and follow directives.
Disruptive Behavior Generally, yes. Policies that prohibit boisterous, disorderly, or disruptive conduct. These policies discourage conduct that could harm employees and others and promote productivity and safety.
Confidentiality, Proprietary, and Customer Information and Documents Generally, yes. Policies that prohibit disclosure of financial data, proprietary company information, or confidential information about partners, vendors, or customers. These policies help employers avoid legal liability and protect information that gives them a competitive advantage.
Defamation or Misrepresentation Generally, yes. Policies that prohibit an employee from misrepresenting the company’s products or services or that defame co-workers. Employers have a significant interest in protecting themselves, their reputations, and their employees from defamation and slander.
Logos or Intellectual Property Generally, yes. Policies that prohibit employees from using a company’s logo, trademark, or graphic without approval. Employers have a legitimate interest in protecting their intellectual property and to avoid confusion about what the company supports.
Speaking for the Company Generally, yes. Policies that prohibit an employee from commenting on the employer’s behalf. Employers have the right to control the message they communicate to the public.
Disloyalty, Nepotism, or Self-Enrichment Generally, yes. Policies that prohibit an employee from engaging in disloyal or competitive conduct or conduct that damages the company, such as illegal acts in restraint of trade or employment with another employer. Employers have a legitimate interest in preventing conflicts.
Gray Area Depends Policies about off-duty conduct, false (but not defamatory) statements, communicating with the media, and overbroad confidentiality rules These rules are not obviously lawful or unlawful. Employers must tailor these rules to accommodate both their business interests and the employees’ rights.
Wages, Benefits, and Working Conditions No. Policies prohibiting disclosure of salaries, wages, benefits, performance, and employment contract terms. Employees have the right to discuss the terms and conditions of their employment with each other.
Joining Outside Organizations or Voting No. Policies prohibiting employees from joining organizations outside of the company or that regulate how an employee should vote. These policies interfere with an employee’s right to join a union.