New Guidance for Employers on Workplace Policies

Date: June 14, 2018

In June 2018 the National Labor Relations Board issued a memorandum providing guidance on employee handbook rules. For background, the National Labor Relations Act prohibits employers from adopting or enforcing policies that interfere with their employees’ right to engage in “concerted action.” For example, employees can advocate for better compensation, benefits and workplace conditions. But employers can maintain rules to ensure productivity, minimize workplace distractions and to address other legitimate business concerns.

NLRB is Taking a More Reasonable Approach

During the Obama Administration, the NLRB scrutinized employer policies for NLRA violations. For example, an NFIB member faced an unfair labor practice charge after he told employees to adopt a “positive attitude.” Overzealous field agents took the view that this ostensibly reasonable rule might inhibit an employee from voicing workplace concerns. But the NLRB’s new guidance permits this sort of workplace policy.

The new guidance explains that the Board will no longer prohibit a workplace rule simply because it could be interpreted as covering concerted rights. The Board will now prohibit only those rules that will reasonably be interpreted as interfering with protected activities. In other words, “generalized provisions should not be interpreted as banning all activity that could conceivably be included.”

Rules that “specifically ban” protected conduct are still unlawful—as are rules pronounced in response to employees exercising their rights under federal labor law. But a rule that is not plainly targeted at protected activity is going to be construed as permitting employees to engage in concerted activities. NLRB outlines a handful of examples of legitimate workplace policies:

• Rules requiring employees to act civilly and respectfully to their colleagues and customers;
• Rules prohibiting photography and recordings;
• Rules against insubordination and non-cooperation;
• Rules against disorderly conduct and other disruptive activities;
• Rules protecting confidential, proprietary and customer information;
• Rules against defamation or misrepresentation;
• Rules against using company logos or intellectual property;
• Rules requiring authorization to speak for the company;
• Rules banning disloyalty, self-enrichment, and nepotism.

A Word of Caution

Even rules that appear reasonable could violate the NLRA if enforced in a manner that interferes with protected rights. For example, the memorandum warns that rules prohibiting employees from criticizing their employer may be problematic. On that point, employers should tread carefully when crafting social media policies, since we have seen a handful of lawsuits over social media rules.

To ensure compliance, work with a good labor attorney when drafting or revising your employee handbook. But as a starting-point, we recommend consulting our Model Employee Handbook. This is part of NFIB Small Business Legal Center’s Legal Guide Series, which covers a handful of other important topics—from wage & hour law to unionization issues.

Related Content: Legal - Compliance | Management

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