NLRB loosens restrictions on employer work rules

The National Labor Relations Board (NLRB) during the Obama administration rocked the human resources world for employers, both union and nonunion, with its broad restrictions on employer work rules, social media policies, trade secret/confidentiality policies, and employee handbooks.

If a rule or a policy had any “chilling effect” on an employee’s rights with respect to wages, benefits, terms and conditions of employment and protected concerted activity, it was found to violate the law. Employers, both union and nonunion, were held accountable.

In late December 2017, the new NLRB reversed its course in a case involving Boeing Company and jettisoned the speculative “chilling effect” standard. The NLRB held that a balancing test should be applied to work rules and policies, weighing an employer’s interest in maintaining the work rules against their effects on workers’ rights to engage in concerted activity. On June 6, 2018, the NLRB’s new general counsel issued a memorandum to the agency’s regional offices providing guidance on the balancing test established in the Boeing case.

During the week of March 11, 2019, the NLRB’s Division of Advice, which answers legal questions posed by the agency’s regional officials about active cases, issued five guidance memoranda, two of which applied the recent test from the NLRB’s Boeing decision and one related to Facebook posting.

These memoranda on active cases shed new light on employer work rules and HR policies that violate or do not violate the NLRA. The document discusses these types of employer rules:

  • A rule that employee handbooks and their contents are confidential is a violation, unless it is tailored to protect specific employer proprietary information unrelated to terms and conditions of employment.
  • Restricting workers’ nonbusiness use of company email violates the law since it extends to nonworking time, and an “incidental personal use” provision did not cure the violation.
  • Restricting disclosure of payroll information violates the law, since its context did not indicate that it referred to some aspect of the employer’s payroll system other than employee wages and benefits.
  • Requiring employees to cooperate with company investigations does not violate the law where it did not reference unfair labor practice charges or government regulations. The advice memorandum says the rule is legal because a reasonable reading of the rule by employees is only asking employees to cooperate with employer investigations of workplace misconduct.
  • A rule that employees not wear items of apparel “with inappropriate commercial advertising or insignia” is legal. It’s not reasonable for employees to read the rule as outlawing wearing items bearing union logos, which violates the NLRA, especially in the context of the many other professional, businesslike appearance requirements of the rule.
  • Requiring workers to exercise a “high degree of caution” when handling specific sensitive information and allowing only certain spokespeople to be the employer’s public communicator was found to be legal. The rule only restricts employees who have access to the information as part of their jobs, and the rule merely regulated who may speak on an employer’s behalf.
  • Prohibiting employees from using their personal cellphones during “working hours” violated the law, since employees have the right to communicate with each other through non-employer-monitored channels during lunch or break periods.
  • An employee who posted on Facebook in a group discussion about unsafe work conditions and was subsequently fired was protected because his Facebook posting amounted to concerted activity, and the NLRA inherently protects workers’ conversations about health and safety issues.

The Boeing case – and these recent advice memoranda from the NLRB’s general counsel – signal a new, more commonsense approach to employer HR policies and work rules. Yet, the memoranda indicate that even with the new balancing test, many employers still have HR policies, work rules, social media policies, and confidentiality/trade secret policies that violate the law.

There is no substitute for a regular review, at least annually, of these policies and rules.

About the author

Clyde Jacob III

Clyde Jacob III is senior counsel in Fisher Phillips’ New Orleans office. His experience spans 40 years, and he has represented employers throughout the U.S. and Puerto Rico. He can be reached at chjacob@fisherphillips.com.

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