On June 6, 2018, National Labor Relations Board General Counsel Peter Robb released a guidance on how to apply the new employee handbook standard established by the Board in its December 2017 Boeing decision.  In Boeing, the NLRB overturned its 2004 Lutheran Heritage Village-Livonia standard, which, when applied, invalidated many civility, confidentiality and other workplace policies and rules.

Lutheran Heritage established a two-part test for determining whether a facially neutral employment policy could be "reasonably construed" by employees to potentially interfere with their right under National Labor Relations Act (the "Act") to engage in protected concerted activity.  Under that test, the Board first considered the nature and extent of the rule's potential impact on employee rights, and then examined the employer's legitimate justifications for the rule.  The standard received substantial criticism from employers for outlawing many legitimate and necessary workplace rules.  Moreover, in response to this standard, many employers revamped their handbooks to remove any possible perceived impact on employee rights.    

In Boeing, the Board discarded the Lutheran Heritage standard, and established three separate categories for classifying work rules:

Category 1 – Rules that are generally lawful to maintain
Category 2 – Rules that warrant individualized scrutiny
Category 3 – Rules that are unlawful to maintain

The General Counsel's June 6 memorandum sheds further light on the contours of the three categories by providing specific topics that fit within each category, as follows:  

Category 1 – Rules that are generally lawful to maintain, include:

• Civility rules
• No-photography rules and no-recording rules
• Rules against insubordination, non-cooperation or on-the-job conduct that adversely affects operations
• Disruptive behavior rules
• Rules protecting confidential, proprietary and customer information or documents
• Rules against defamation or misrepresentation
• Rules against using employer logos or intellectual property
• Rules requiring authorization to speak for company
• Rules banning disloyalty, nepotism or self-enrichment

Category 2 – Rules that warrant individualized scrutiny, include:

• Broad conflict-of-interest rules
• Broadly worded confidentiality rules
• Rules regarding disparagement or criticism of the employer
• Rules regulating use of the employer’s name
• Rules restricting speaking to the media or third parties
• Rules banning off-duty conduct that might harm the employer
• Rules against making false or inaccurate statements

Category 3 – Rules that are unlawful to maintain, include:

• Confidentiality rules specifically regarding wages, benefits or working conditions
• Rules against joining outside organizations or voting on matters concerning employer

The Guidance explicitly notes that simply because a Category 1 rule is facially neutral is not dispositive of whether the employer applied the rule lawfully.  An employer that enforces a Category 1 rule to prohibit protected concerted activity or to discipline employees engaged in protected concerted activity violates the Act.

The General Counsel's discussion of Category 2 rules emphasizes the value of providing context to the rule through the use of examples.  Specifically, in an effort to comply with the Lutheran Heritage standard, some employers modified policies to include in the rule itself specific examples of the kind of conduct the rule prohibits.  This approach was viewed favorably by the Board because it illustrated the intended scope of the rule and the fact that the rule did not forestall employees' abilities to exercise their rights under the Act.

The Board’s about-face in Boeing, together with the General Counsel's explanatory guidance, is  a very welcomed development for employers and recognition of an employer's right to establish rules governing workplace behavior.  This new approach validates an employer's ability to advance its legitimate and substantial interests in proscribing detrimental behavior, creating a respectful workforce, securing confidential information and protecting the business's brand.