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The decision by the National Labor Relations Board (NLRB) in a case known as The Boeing Company on June 6, 2018, gave General Counsel Peter Robb the opportunity to clarify, modify and in some cases reverse guidelines issued by the Obama-era NLRB regarding employer workplace rules, or policies. Generally speaking, these rules may or may not affect, interfere or prohibit “protected, concerted activity” by employees as guaranteed by Section 7 of the National Labor Relations Act (NLRA). In a memorandum, Robb divided these rules into three categories:
Peter Robb, NLRB General Counsel
CATEGORY 1 RULES: Rules falling into this category are generally lawful because, “when reasonably interpreted,” they do not prohibit or interfere with Section 7 rights, or because any possible adverse impact they may have is outweighed by business justifications. Examples include:
- Civility rules
- No photograph and no recording rules
- Insubordination, non-cooperation and on-the-job conduct rules
- Disruptive behavior rules
- Confidentiality, proprietary and customer information rules
- Defamation and misrepresentation rules
- Speaking-for-the-company rules
- Disloyalty, nepotism and self-enrichment rules
CATEGORY 2 RULES: These rules on the surface are neither obviously lawful nor obviously unlawful and must be evaluated on a case-by-case basis. Examples given were:
- Broad conflict-of-interest rules
- Broad confidentiality rules
- Rules regarding use of employer’s name (as opposed to logo or trademark)
- Speaking-to-the-media rules
- False or inaccurate statement rules
- Off-duty conduct rules
CATEGORY 3 RULES: These rules are generally unlawful because they prohibit or limit NLRA-protected conduct and cannot be justified by any business need. Examples given were:
- Confidentiality rules regarding wages, benefits or working conditions
- Rules against joining outside organizations or voting on matters concerning the employer