(Article written by Charles Pautsch, Attorney at Pautsch Spognardi & Baiocchi; the firm specializes in labor law; Charles is a guest blogger for WageWatch, Inc.)
As was expected, last week General Counsel Peter Robb issued a GC memorandum providing guidance on the legality of work rules in light of the NLRB’s decision in The Boeing Company. The Boeing decision overturned the Obama labor board’s decision in Lutheran Heritage Village which prohibited facially neutral work rules which “could” be interpreted as interfering with Section 7 rights, as opposed to “would” be interpreted as interfering with Section 7 rights. This new standard focusses on balancing the legitimate business justifications of the employer with the negative impact on the employee’s exercise of Section 7 rights.
The Boeing standard creates three categories of work rules. Category 1 includes rules that are generally lawful because they cannot reasonably be interpreted to interfere with Section 7 rights, or because any potential adverse impact is outweighed by legitimate business reasons. These rules include a) civility rules; b) no-photography/ no-recording rules; c) insubordination/on-the-job conduct rules; d) disruptive behavior rules; e) confidentiality rules regarding company/customer information; f) anti-defamation/misrepresentation rules; g) rules prohibiting the use of company logos/trademarks; h) rules requiring authorization to speak for the company; and i) rules prohibiting disloyalty, nepotism, and conflicts of interest. Charges alleging that such rules are facially unlawful should be dismissed, absent withdrawal.
Category 2 rules are not clearly lawful or unlawful, and require case-by-case scrutiny. Legality of the rule will depend on the factual context. Examples of such rules include broad conflict of interest rules focused on “employer” or “employee” information, and that do not target fraud or self-enrichment, or customer or proprietary information; rules that prohibit disparagement or criticism of the employer, as opposed to rules requiring civility or prohibiting disparagement of employees; rules regulating use of the employer’s name, as opposed to trademarks; rules prohibiting speaking to third parties or the media, as opposed to speaking on behalf of the employer; rules banning off-duty as opposed to on-duty conduct; and rules prohibiting false or inaccurate statements, as opposed to defamatory statements. Category 3 rules are generally unlawful. These rules require confidentiality or prohibit discussion of employee wages, terms, and conditions of employment; prohibiting joining outside or third-party organizations, or prohibit voting on matters related to the employer.
Contact PSB(414-223-5743) if you have questions about this guidance and how it affects your current work rules, and any revisions you are contemplating in your annual review of your employee handbook; offices in Cave Creek and Phoenix.