NLRB General Counsel Issues Guidance on Employee Handbook Rules

On June 6, Peter B. Robb, general counsel for the National Labor Relations Board (NLRB), issued guidance to regional directors on how to evaluate workplace rules and handbooks in light of the Board’s decision in The Boeing Company, 365 NLRB No. 154 (2017). The guidance applies to handbooks in both union and nonunion workplaces at private-sector employers, including private colleges and universities.

In the Boeing decision, the Board replaced the 2004 Lutheran Heritage “reasonably construe” standard — which made official handbook rules unlawful if they “could” be interpreted as interfering with employee rights protected under Section 7 of the National Labor Relations Act (NLRA) — with a new test for the Board to use when evaluating the validity of employer rules, policies and handbook provisions under the NLRA.

Until Boeing, employers faced the difficult task of creating reasonable rules for workplace conduct, such as policies and training sessions to promote respectful behavior, without violating federal labor law. For instance, in 2011 (2 Sisters Food Group) and 2014 (Hills & Dales General Hospital), the Board found that the employers violated federal law when they advised its employees to “work harmoniously” and conduct themselves in a “professional manner.” In William Beaumont Hospital, the Board found the employer violated federal law for a policy that stated doctors and nurses should foster “harmonious interactions and relationships.”

Under the new decision, these aforementioned policies will be deemed lawful as the Board will evaluate “the nature and extent of the potential impact on NLRA rights and legitimate justifications associated with the rule” when evaluating employer policies that may interfere with the exercise of NLRA rights. In essence, the Board’s new standard will “ensure a meaningful balancing of employee rights and employer interests” so that employers can maintain discipline and productivity in their workplaces. To ensure this appropriate balancing act in future cases, the Board also announced three categories of work rules to provide clarity to employers, employees and unions — Rules That Are Lawful to Maintain, Rules Warranting Individualized Scrutiny, and Rules That Are Unlawful to Maintain.

The general counsel’s memo takes the next step in the process laid out in Boeing and “contains general guidance for Regions regarding the placement of various types of rules into the three categories set out in Boeing, and regarding the Section 7 interests, business justifications and other considerations that Regions should take into account in arguing to the Board that specific Category 2 rules are unlawful.”

The memo provides examples of specific workplace rules, many of which are commonly found within employee handbooks, and specifies which of the aforementioned category an employer’s policy should fall into.