A New NLRB Roadmap for Employee Handbooks

What Are the Current NLRB Handbook Guidelines for Employers?

Through a number of legal cases, including the 2004 Lutheran Heritage decision and later decisions, the National Labor Relations Board (NLRB) deemed certain employee handbook rules as unlawful. They adjudicated that they were in violation of employees Section 7 rights (right to self-organize and right to collective bargaining).

As a result, for a number of years workplace rules established by employers came under scrutiny and more harsh restrictions.

However, the NLRB MEMORANDUM GC 18-04, released on June 15, 2018, restored commonplace rules that previously were under attack.

New Categories for Rules

The NLRB now places employment rules into three categories: category 1 lawful rules, category 2 rules warranting individualized scrutiny, and category 3 unlawful rules.

Category 1 Rules

The NLRB considers rules to be lawful (when reasonably interpreted) that do not prohibit or interfere with employees’ rights under the NLRA. They also consider whether the business justifications associated with the rule outweigh the potential adverse impact on protected rights.

Some category 1 examples that are lawful rules include:

  • Conduct that is inappropriate such as rude or condescending behavior
  • Negative or disparaging remarks about the professional capabilities of an employee
  • Offensive language
  • Posting photographs or videos that could be viewed as disparaging employees
  • Insubordination to a manager
  • Lack of cooperation with fellow employees or guests
  • Prevention of company misrepresentation
  • Using a company logo or trademark without approval

Category 2 Rules

Rules that warrant individualized scrutiny are rules that are not obviously lawful or unlawful. The Board would evaluate on a case-by-case basis whether the rule caused employees to refrain from Section 7 activity. They would also weigh whether the adverse impact on those rights outweighed legitimate justifications.

Some examples of category 2 rules include:

  • Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees)
  • Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf)
  • Rules banning off-duty conduct that might harm the employer
  • Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements)

Category 3 Rules

This category includes rules that are unlawful to maintain because they would prohibit or limit the NLRA protected conduct. The adverse effect of these rules would outweigh any justifications associated with the rule.

Some examples of unlawful rules include:

  • Confidentiality rules specifically preventing discussion regarding wages, benefits or working conditions
  • Rules against outside organizations (unions) or voting on matters concerning the employer

Do You Have Questions about Rules in Your Employee Handbook?

At Stephen Hans & Associates we provide employers with legal assistance for employee handbooks and other employment related issues.

Queens NY Employment Defense Attorney


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