The Board’s General Counsel Memorandum is a Comforting Return to a Common Sense

Approach to Workplace Policies

On June 6, 2018, Peter. B. Robb, General Counsel for the National Labor Relations
Board (“Board”), provided employers with the first substantive guidance regarding workplace
policies since the Board’s Boeing decision. General Counsel Memorandum 18-04 is a victory
for employers as the Board seems to be returning to a common sense approach when evaluating
workplace policies concerning on the job conduct, confidentiality, defamation, intellectual
property, among other things.

Under the NLRB’s Boeing decision, the Board established a new standard for review of
employer policies that is focused on the balance between an employees’ ability to exercise their
Section 7 rights and the employers’ right to maintain discipline and productivity in the workplace.
The Board broke down workplace policies into three categories:

• Category 1 – Rules that do not prohibit or interfere with the exercise of protected rights, or the
potential adverse impact on protected rights is outweighed by justifications associated
with the rule.
• Category 2- Rules that the warrant individual scrutiny on a case-by-case basis and whether any
adverse impact on protected conduct is outweighed by legitimate justifications.
• Category 3 – Rules that that the Board will designate as unlawful to maintain because they
would prohibit or limit protected conduct, and the adverse impact on Section 7 rights is
not outweighed by justifications associated with the rule.
(https://www.employerlaborrelations.com/2017/12/19/the-boards-return-to-civility-and-
common-sense-regarding-workplace-rules/)
•
This latest memorandum adds guidance to the three categories set out in Boeing:

Category 1 Policies that are Lawful to Maintain

• Civility rules – Rules that require courteousness in the workplace, that prohibit rude or
unbusinesslike behavior and that prohibit an employee from disparaging another
employee. These types of rules advance substantial employee and employer interests,
including an employer’s responsibility to maintain a workplace free of harassment and
violence.
• No photography/no recording rules – Rules that prohibit photography in the workplace and
that forbid recording conversations, meetings and phone calls with co-workers,
supervisors, and third parties unless such recordings are approved by the Company.
These type of rules advance an employer’s interest in limiting recording and photography
on Company property. Be advised however, employers still must ensure that a no
recording policy passes legal muster under applicable state law.
• On the job conduct rules – Rules that prohibit insubordination, being uncooperative or
otherwise engaging in conduct that does not support the employer’s goals and objectives.
These type of rules allow an employer to prevent non-cooperation at work.

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• Disruptive behavior rules – Rules that prohibit boisterous or other disruptive conduct. These
type of rules allow an employer to prevent dangerous conduct or bad behavior and ensure
safety and productivity.
• Rules protecting confidential, proprietary and customer information – Rules that prohibit the
discussion and dissemination of confidential, proprietary or customer information. These
types of rules allow an employer to protect confidential and proprietary information, as
well as customer information.
• Rules against defamation or misrepresentation – Rules that prohibit defamatory messages and
misrepresent the employer’s products, services, or employees. These types of also allow
an employer to protect themselves, their reputation, and their employees from
misrepresentation, defamation and slander.
• Rules against using an employer’s intellectual property – Rules that prohibit the use of
Employer logos, trademark, or graphics without prior written approval.
• Rules that require authorization to speak for the Company – Rules that prohibit employees to
comment on behalf of the employer and to respond to media request only through
designated spokespersons. These types of rules allow an employer to designate who
should speak on behalf of the employer.
• Rules banning disloyalty, nepotism, or self-enrichment – Rules that prohibit disloyal conduct,
conduct that is damaging to the employer, and conduct that competes with the employer
and/or interferes with an employee’s judgment concerning the employer’s best interests.
These type of rules allow an employer to prevent a conflict of interest, self-dealing or
maintaining a financial interest in a competitor. These type of rules, when reasonably
interpreted, have no meaningful impact on Section 7 rights.
•
Category 2 Policies Warranting Individualized Scrutiny

• Broad conflict-of-interest rules that do not specifically target self-enrichment and that do not
restrict membership in, or voting for, a union.
• Confidentiality rules that broadly encompass employer business or employee information,
versus confidentiality rules specifically regarding customers and/or proprietary
information.
• Rules that disparage or criticize the employer versus civility rules that bar the disparagement
of employees.
• Rules that regulate the use of the employer’s name versus rules that regulate the use of the
employer’s intellectual property.
• Rules that restrict speaking to the media or third parties versus rules that restrict speaking to
the media on the employer’s behalf.
• Rules that ban off-duty conduct that might harm the employer versus rules that ban
insubordination and other disruptive conduct while at work.
• Rules against making false or inaccurate statements versus rules against making defamatory
statements.
•
Category 3 Policies that are Unlawful to Maintain

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• Confidentiality rules about wages, benefits, and working conditions – The ability to freely
discuss terms and conditions of employment is a cornerstone of Section 7 rights. There
are no legitimate business justifications in banning employees from discussing wages or
working conditions.
• Rules against joining outside organizations or voting on matters concerning the employer –
Employees have a right to join outside organizations, specifically unions. While
employers have a legitimate and substantial interest in preventing nepotism, fraud, self-
dealing, and maintaining a financial interest in a competitor, rules that prohibit
membership in outside organizations or from participation in any voting concerning the
employer unduly infringe upon Section 7 rights.
•
While the pendulum could swing back in a new administration, the Board’s return – at
least for now – to allow employers to require employees to maintain a reasonable level of civility
in the workplace is a refreshing victory for employers. Both the Boeing decision and General
Counsel Memorandum 18-04 prove that the Board clearly understands that the prior Board
standard laid out in Lutheran Heritage, which prohibited any rule that can reasonably be
interpreted as covering Section 7 activity, was unduly burdensome, oppressive, and an
operational hindrance. Now’s a good time for employers to review their handbook policies.

Karla Grossenbacher is the Co-Vice President for Legislative Affairs on the NOVA SHRM
Board, and chairs the labor and employment practice in the Washington, D.C. office of Seyfarth
Shaw LLP. Karla Grossenbacher appreciates the efforts of Jason Silver and Kevin Fritz in
preparing this article. If you have any questions about the information in this article, you may e-
mail Karla at kgrossenbacher@seyfarth.com or call her at 202-828-3556.

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