NLRB Issues New Guidance for Employee Handbooks

The Office of the General Counsel (“GC”) for the National Labor Relations Board (“NLRB”) has issued new Guidance to its Regional Directors and Offices regarding employee handbook policies in response to an NLRB ruling in December, The Boeing Company, 365 NLRB No. 154.  The new Guidance regarding employee handbook rules addresses how NLRB staff should handle charges filed pertaining to employers’ work rules that are geared towards promoting discipline and productivity in the workplace.  The GC’s advice to employers gives much-needed practical Guidance to employers, explaining how employers should analyze their current rules under a new 3-tier framework set forth in Boeing.   The Guidance further explains what types of employee handbook rules would typically be included in each category, ranging from rules that NLRB staff should consider to be generally lawful to those requiring greater individual scrutiny, to those that would be considered clearly unlawful for an employer to include in an employee handbook.

As the GC’s Guidance explains,  Boeing reassessed the standard for when the “mere maintenance” of a work rule in an employee handbook violates employee rights under Section 8(a)(1) of the National Labor Relations Act (“NLRA”). Section 8 of the NLRA deals with the prohibition on interference with the NLRA Section 7 rights of all workers, regardless of whether the workers are currently members of a union to engage in “protected concerted activity”.  In Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and subsequent decisions prior to Boeing, the NLRB scrutinized employee handbooks for rules of conduct which could be “reasonably construed” to prohibit or had a tendency to interfere with Section 7 activity.  The NLRB previously held that some employee handbook work rules prohibiting workers from “rude, discourteous, or un-businesslike behavior” interfered with workers’ Section 7 rights.  The latest Guidance, in keeping with the Boeing ruling, relaxes the NLRB standard in regards to having these types of work rules in employee handbooks.

The Guidance further explains the impact of Boeing, which overruled the “reasonably construe” standard of analysis of employee handbook rules set forth in prior cases.   Boeing established a new standard focusing instead on the balance between a rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to an employer’s right to maintain discipline and productivity in their workplace.  In Boeing, the Board found that the vast majority of prohibited conduct aimed at maintaining discipline and productivity in the work environment would not implicate Section 7 rights at all.  For instance, the Board reasoned that while protected concerted activity may involve criticism of fellow employees or supervisors, the requirement that such criticism remain civil does not unduly burden the core right to criticize. Furthermore, the Board found that any adverse effect of prohibiting such conduct would be comparatively slight, since a broad range of NLRB activities that are protected are “consistent with basic standards of harmony and civility.”

While this latest Guidance from the NLRB General Counsel indicates how the Boeing decision expanded Employers’ rights to promulgate and enforce acceptable conduct rules via employee handbooks, employers should be aware that some work rules may be drafted in a way that still implicate Section 7 rights.  Employers should now review and update their work rules and employee handbooks as needed and in keeping with this latest Guidance from the NLRB.   Attorneys Matthew Stokely and Kristina Curry at Pickrel, Schaeffer & Ebeling are here to help you analyze your current policies and help you to determine whether implementing new policies (or restoring prior policies) will help you meet your employee disciplinary and productivity goals.

AUTHOR: Kristina Curry