Over the past decade, employers have expressed frustration over the National Labor Relations Board’s increasing scrutiny over what were considered to be standard employee handbook policies. In various board cases, it has declared policies in violation of the law that cover things like employment at-will explanations and requirements for cooperative and civil behavior while at work. Many of these decisions quoted the NLRB’s Lutheran Heritage opinion, which found that even a policy that is drafted without intent to violate labor laws – and which is never used for that purpose – conflicts with the NLRA if it could be interpreted by employees as having that effect.
In December, the board issued its Boeing decision, which limited Lutheran Heritage by adding a balancing test that ceases to presume that employers write handbook policies with the intent to ban protected labor activities. Earlier this month, the NLRA’s general counsel released a memorandum explaining how Boeing applies to a variety of employee handbook policies.
The memo divides these policies into three categories. Category 1 includes policies presumed to be lawful absent special circumstances. These include civility rules, no-recording rules, and protection of confidential customer or client information. Category 2 policies require individual analysis to determine whether they interfere with employee concerted rights. Examples include broad confidentiality rules and prohibitions against disparaging the company. Category 3 rules are generally unlawful under pre-Lutheran Heritage precedent. They include prohibiting employees from discussing wages, as well as rules limiting employees’ ability to join outside organizations.
This guidance should provide employers with a clearer explanation of how to draft handbooks that avoid the potential for serious unfair labor practice claims.