Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
The National Labor Relations Act governs what most private-sector employers can say and do with respect to employee “concerted” or group activities, whether they are represented by a union or not. This includes scrutiny by the National Labor Relations Board of workplace rules and policies that may interfere with employees’ rights.
Since December 2017, employers have enjoyed considerable flexibility concerning rules and policies under the Board’s test in The Boeing Co. That decision replaced the Board’s prior standard under Lutheran Heritage Village-Livonia, which ruled that an unlawful chilling effect occurs whenever employees would reasonably construe a workplace rule to limit their protected activities. Under the standard in Lutheran Heritage the Board waged a war on handbooks by invalidating many sensible rules concerning civility, honesty, respect, and other norms of behavior. The Board found ambiguous or subjectively defined rules that could cause confusion among employees about their rights to be unlawful. Under The Boeing Co. the Board limited its review of rules that only implicitly or explicitly restrict employee activities, and balanced alleged restrictions against employers’ legitimate justifications for regulating conduct in the workplace. The war was over, for a time.
During the Biden administration, a new Board majority is expected to reverse The Boeing Co. and adopt a much more restrictive standard governing maintenance of handbooks. On February 1, new Acting General Counsel Peter Sung Ohr revoked the enforcement guidance that significantly limited enforcement litigation pursuant to The Boeing Co. test. On March 31, 2021, the acting general counsel issued a new enforcement memorandum taking a very expansive view of protected, concerted activities under the Act, and urging vigorous enforcement, among others, of “inherently” protected activities that may not even be conducted in a concerted fashion.
The Board’s new chair, Lauren McFerran, was a member of the Board who dissented vehemently from the majority’s decision in The Boeing Co. In Boeing and in subsequent dissenting opinions she has called the decision irrational, arbitrary and capricious, and illegitimate rulemaking intended to promote employers’ efforts to suppress employee rights. In its most recent decision reviewing employer rules issued in March 2021, the Board majority in Medic Ambulance Service applied The Boeing Co. standard and rejected challenges to six handbook provisions that were at issue. Chair McFerran dissented and argued she would have found all six rules unlawful under Lutheran Heritage. Those included:
- A rule prohibiting “disparag[ing] the Company … or other employees” which she argued could be construed to encompass “any public statement or protest by employees that criticizes company-imposed working conditions,” or that criticizes managers or supervisors, all of which are “at the core of what the [Act] protects”;
- A rule prohibiting “inappropriate communications,” which could be construed to cover a broad range of complaints that are considered critical of the employer;
- A rule restricting disclosure of “confidential or proprietary information regarding the company or your coworkers,” which could be construed to restrict providing coworkers’ names, contact information, wages and working conditions during an organizing campaign;
- A rule prohibiting use of the employer’s name “to endorse, promote, denigrate or otherwise comment on any product, opinion, cause or person,” which could limit employees’ right to solicit “outside support in improving their terms and conditions of employment”;
- A rule prohibiting posting photos of coworkers without their consent, which could limit posting pictures of coworkers who are engaged in protected activities; and
- A rule requiring employees to forward telephone calls regarding a current or former employee’s position or compensation, which could be construed to limit responses to any inquiry about an employee’s position or compensation.
Now is an excellent time for employers to review their work rules and handbooks and assess their susceptibility to a challenge under Lutheran Heritage or similarly restrictive future standard. Investigations into unfair labor practice charges after the Board adopts a new standard likely will include routine requests for work rules and handbooks and result in increased adjudications. A finding that a rule interferes with employee rights can have a significant impact on business operations, and require revision or replacement of rules, postings and distribution of notices to employees concerning their rights. Handbook challenges can be used to amplify union supportive messages during organizing campaigns; increase the employer’s legal burden to defend claims of unlawful discharge or discipline; and even result in representation elections being invalidated based on the maintenance of facially overbroad rules.
Rules that have commonly resulted in enforcement actions under Lutheran Heritage should be reviewed and current rules and policies assessed against them. Consider, in addition to the rules at issue in Medic Ambulance, other types of rules the Board regularly found unlawful under the Lutheran Heritage standard. Some of these have included:
- rules that have a tendency to restrict employee advocacy, such as requiring civility and courtesy, or prohibiting offensive, insulting and even “harassing” behavior that is not based on anti-discrimination considerations;
- rules that may limit protected complaints such as by prohibiting negative, damaging, critical or disparaging statements about the employer, the workplace or coworkers;
- rules restricting lawful protest activities, such as rules prohibiting uncooperativeness, failure to follow instructions, walking off the job or similarly disruptive behavior;
- rules that punish inaccurate reports or complaints, such as rules prohibiting “false” statements to management;
- rules that limit conduct, particularly outside of work, that may be controversial or perceived as contrary to the employer’s business interests, such as rules prohibiting disloyalty and broad conflict-of-interest policies;
- rules prohibiting use of the employer’s intellectual property and copyrights even for fair uses, or prohibiting self-identification as an employee;
- rules restricting political activities that may have a nexus to workplace issues;
- restrictions on avenues for complaining, such as exclusive reporting procedures, approval requirements for public statements, and limits on communicating with customers about the workplace;
- rules restricting access to the workplace, such as anti-loitering rules and access restrictions for off-duty employees; and
- rules that limit employees’ right to share information about their wages, hours and employment terms, including broad confidentiality provisions, rules treating handbooks or policy manuals as confidential, and rules restricting “sensitive” or “personal” employee information.
Employers would be wise to consider whether their current policies and handbooks can withstand scrutiny under the Board’s pre-Boeing Standard, and if not, whether the policies and handbooks can be revised to meet management’s goals while avoiding condemnation by the Board.