On June 6, 2018, the National Labor Relations Board (the “Board”) issued new guidance applying the National Labor Relations Act (“NLRA”) to common workplace rules and policies.   The new guidance, authored by the Board’s Office of General Counsel, identifies three categories of common workplace rules: (1) rules that are “generally lawful,” (2) rules that are “not obviously lawful or unlawful, and must be evaluated on a case-by-case basis,” and (3) rules that are “generally unlawful.”

While unionized employers are likely familiar with the Board’s regulatory authority, it is critical to note the Board’s authority to regulate many issues impacting non-union employers.  As such, both unionized and non-union employers should become familiar with the Board’s new guidance.

The new guidance comes six months after the Board adopted a new standard for interpreting workplace rules in its Boeing Company decision. The Boeing decision did away with the Board’s prior standard for judging workplace rules, which generally prohibited employers from maintaining any rule employees “could” perceive as prohibiting their exercise of rights under the NLRA. By contrast, the new standard balances an employee’s rights under the NLRA with the employer’s right to “maintain discipline and productivity in their workplace.”

The three categories of rules as described in the Board’s guidance are detailed below.

Category 1

The rules in this category are “generally lawful” under the new guidance because “when reasonably interpreted” they do not “prohibit or interfere with the exercise of rights” under the NLRA. The Board divided these Category 1 rules into several sub-categories:

• Civility Rules: For example, a rule prohibiting “behavior that is rude, condescending or otherwise socially unacceptable.”
• No-Photography and No-Recording Rules: For example, a rule that states “employees may not record conversations, phone calls, images, or company meetings with any recording device.”
• Insubordination or Non-cooperation Rules: For example, a rule that prohibits “insubordination to a manager or lack of cooperation with fellow employees or guests.”
• Disruptive Behavior Rules: For example, a rule that prohibits “boisterous and other disruptive conduct.”
• Rules Protecting Confidential Information: For example, a rule that informs employees to “not disclose confidential financial data, or other non-public proprietary company information.”
• Defamation Rules: For example, a rule against “misrepresenting the company’s products or services or its employees.”
• Other Rules: The Board illustrated several other examples of rules which would be considered lawful, including: rules prohibiting employee use of employer logos; rules requiring company authorization before speaking on behalf of the company; and rules banning nepotism, self-enrichment, and disloyalty to the company.

Category 2

The Board’s examples of rules in this category are “not obviously lawful or unlawful,” and the Board guidance states such rules must be “evaluated on a case-by-case basis.” Employers should proceed with caution with maintaining these rules. Examples include:

• Overboard “conflict-of-interest” rules which do not specifically target fraud or self-enrichment.
• Rules regulating employees’ use of the employer’s name, as opposed to rules regulating use of the employer’s logo.
• Rules that completely restrict speaking to the media or third parties.
• Rules banning off-duty conduct that might harm the employer.

Category 3

The rules in the third category are “generally unlawful because they would prohibit or limit NLRA-protected conduct.” The new guidance divides this category into two parts:

• Confidentiality Rules Specifically Regarding Wages or Working Conditions: For example, a rule that states “employees are prohibited from disclosing salaries, contents of employment contracts.”
• Rules against Joining outside Organizations or Voting on Matters Concerning the Employer: For example, a rule that prohibits employees from joining any “outside organization.”

This guidance instructs the Board’s Regional Offices to utilize these instructive examples when adjudicating workplace rule disputes. The Board’s guidance provides employers, whether unionized or not, with an opportunity to review employee handbooks and other policies and to implement any necessary changes.