In the wake of the National Labor Relations Board’s (NLRB) decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the NLRB has recently issued new guidance regarding employee handbook rules. The NLRB’s guidance can be found here.
In Boeing, the Board overturned its old standard, under which an employer rule violated the National Labor Relations Act (NLRA) if a worker could “reasonably construe” it to interfere with the right to engage in protected concerted activity. Under the new standard adopted by the Board, an employer rule will only violate the NLRA if it would be reasonably interpreted to interfere with workers’ NLRA rights considering the balance between (A) the nature and extent of the rule’s potential impact on protected rights and (B) the employer’s legitimate justifications for the rule.The Board’s guidance denotes three categories of employer rules with respect to the NLRA: Category 1 rules, which the Board has indicated to be presumptively lawful; Category 2 rules, which warrant individualized scrutiny; and Category 3 rules, which are presumptively unlawful.
For example, Board has indicated that the following types of rules fall within Category 1 and are thus presumptively lawful:
- Employees may not comment for or speak on behalf of the company without prior written approval;
- Employees may not make negative or disparaging remarks about other employees;
- Employees may not disclose the company’s confidential, proprietary, or trade secret information;
- Employees may not disclose information concerning the company’s clients or customers;
- Employees may not misrepresent the company’s products, services, or employees; and
- Employees may not use the Company’s logo, trademark, or graphics without prior written approval.
The Board’s new guidance with respect to Category 1 rules is significant because, under the standard before Boeing, some of these rules could have been construed to have violated workers’ right to engage in protected concerted activity under the NLRA, specifically when in social media policies. Nonetheless, employers should still avoid the following sorts of blanket rules, which the NLRB has now clarified fall under Categories 2 and 3:
- Blanket rules prohibiting employees from making disparaging or negative remarks about the company;
- Blanket rules prohibiting employees from criticizing the employer;
- Blanket rules prohibiting employees from making false or inaccurate statements;
- Blanket rules providing that wages, benefits, or working conditions are confidential or preventing employees from discussing them; and
- Blanket rules prohibiting employees from joining outside organizations.
Neither Boeing nor the Board’s guidance reference social media policies specifically, but the NLRB’s new position applies to company handbook rules generally, which would seem to encompass social media policies. It is worth noting that, prior to the addition of recent Trump nominees to the Board, the NLRB previously indicated that blanket rules regarding employer confidential information in social media policies would violate the NLRA, which may be contradicted by this more recent guidance.
Because guidance pertaining to social media policies under the current Board is still lacking, companies should remain cautious and have experienced legal counsel review their social media policies before making any changes in light of the Board’s recent guidance. Additional guidance on properly drafting social media policies can be found in our prior blog posts here and here.