The employment attorneys at Nardone Limited regularly assist our clients with labor and employment issues, such as Department of Labor compliance, as well as guidance on preventing and responding to discrimination and harassment charging affidavits filed with the Equal Employment Opportunity Commission (“EEOC”) and the Ohio Civil Rights Commission (“OCRC”). Our employment attorneys also regularly update clients on news, events, and changes in law as it relates to labor and employment issues that may impact our clients.
This is the first blog in a two-part series, addressing the recent June 6, 2018, the National Labor Relations Board’s (“NLRB”) General Counsel Memorandum, Memorandum GC 18-04 (“Memorandum 18-04”). Memorandum 18-04 provides guidance to employers on the legality of certain handbook rules, in light of the NLRB’s ruling in an action involving the Boeing Company. See 365 NLRB No. 154 (Dec. 14, 2017). The NLRB’s prior controlling test, the Lutheran Heritage standard, held that maintaining a work rule that was neutral regarding employee concerted activity rights still violated Section 8 of the Labor Relations Act, if employees would reasonably construe the rule to ban protected employee concerted activity. The Lutheran Heritage test, however, gave no consideration to an employer’s stated reasoning for creating a challenged rule. As a result, the Lutheran Heritage test often produced random and subjective rulings.
The Boeing Standard on Permissible Employee Handbook Rules
In Boeing, the Board overruled the Lutheran Heritage standard and issued a new test to balance the impact a rule may have on employees’ Section 7 rights with the employer’s business justifications for the rule. The Board noted that work rules will likely fall into three categories:
Category 1 Rules: which includes rules that the Board deems to be facially lawful;
Category 2 Rules: meaning rules that require individualized scrutiny by the NLRB to determine if the rules are lawful; and,
Category 3 Rules: meaning rules designated by the Board as unlawful.
Although the Boeing decision offered some useful guidance for employers regarding the no-camera rule at issue, Boeing did not provide much guidance to employers on how the NLRB would categorize other common employment policies. But fortunately, Memorandum 18-04 fills this gap by providing specific examples of various common workplace policies that fall within each of the three new categories announced in the Boeing case. Even though Memorandum 18-04 certainly does not address every type of rule or policy that an employer may want to put in place, it provides some much-needed clarity that employers simply did not have under the prior standard. As follows below, we have summarized all of the clarifications in Memorandum 18-04 regarding which common workplace policies would be considered Category 1 rules.
Category 1 Rules: Generally Lawful to Maintain under the NLRB’s Ruling in Boeing
Memorandum 18-04 states that the following types of rules are generally lawful to maintain, and that that Regions should dismiss any unfair labor practice charges alleging that these rules are facially unlawful:
- Civility Rules – Rules that, for example, prohibit rude or discourteous behavior, conduct that impedes harmonious interactions, or disparaging company employees.
- No-Photo/No-Recording Rules – Rules that prohibit the using cameras or recording devices. But, do note that rules banning cell phones may be unlawful in some instances.
- Insubordination Rules – Rules that prohibit insubordination, improper conduct, uncooperative behavior, or refusal to comply with orders to perform work.
- Disruptive Behavior Rules – Rules that prohibit boisterous, disruptive, or disorderly conduct.
- Defamation or Misrepresentation Rules – Rules that prohibit defamation, slander, and misrepresentation.
- Employer Logos and Intellectual Property Rules – Rules that prohibit the use of employer logos or trademarks, as well as other rules to protect confidentiality of employer materials.
- Requiring Authorization to Speak for the Company– Rules that prohibit employees from responding to media requests or commenting on behalf of the employer.
Again, the above list of rules being classified as valid and posing no danger of violating the Labor Relations Act provides employers with some helpful clarity. Employers should consult the above list for purposes of any planned changes or questions about your employee handbook, along with discussing those issues with your legal counsel. And, as referenced above, we will be following-up on this blog with discussion and clarifications regarding employer rules that the NLRB has identified as being subject to greater scrutiny, and those rules that the NLRB has identified as improper and invalid.
Contact Nardone Limited
The Nardone Limited employment attorneys handle a full spectrum of employment law issues, including business disputes and litigation, drafting of employment and restrictive covenants, and consultation on all types of employment law issues. If your business needs advice or representation on an employment dispute before the EEOC, the OCRC, or regarding potential employment litigation, contact one of our employment attorneys. Further, feel free to contact Nardone Limited if you would like more information or consultation regarding any employment law issue.