The general counsel of the National Labor Relations Board (NLRB) issued new guidance on employer handbook rules and company policies in an effort to provide greater clarity to employers on which rules will be considered a violation of the rights of employees. These new rules were released to help aid and protect employee rights under the National Labor Relations Act (NLRA) which extends its regulation of neutral workplace conduct policies. Under the new NLRB test, a ruling when reasonably interpreted would establish whether it conflicts with the exercise of employee’s rights.

The new guidance outlines three categories of rules and states that the “mere possibility” of impacting a protected right is no longer sufficient justification to declare a rule unlawful.

Here is a list of workplace rules considered generally lawful of the new guidance categories:

  • Prohibition of rude, disrespectful, or condescending behavior, or disparagement of company employees.
  • Prohibition of the use of cameras or recording devices in the workplace.
  • Prohibition of insubordinate conduct, uncooperative behavior, or on-the-job conduct that adversely affects operations.
  • Prohibition of disruptive behavior or disorderly conduct.
  • The protection of confidential, proprietary, trade secret, and customer information or documents. (Employers cannot prohibit an employee from discussing wages or conditions of employment)
  • Prohibition of employees from engaging in defamation, slander, or misrepresentation of facts about the company or its employees.
  • Prohibition of employees from responding to media requests, commenting on behalf of the company, or otherwise purporting to speak on behalf of the company.
  • Prohibition of use of the employer’s logo, trademarks, or intellectual property.
  • Prohibition of certain competitive activities, nepotism, disloyalty, or self-enrichment.

The second category of rules should be analyzed and assessed on a case-by-case basis for legitimate business reasons and any negative impact to determine lawfulness:

  • Broad conflict of interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union.
  • Confidentiality rules that broadly encompass “employer business” or “employee information” as opposed to confidentiality rules regarding customer or proprietary information or more specifically directed at employee wages, terms of employment, or working conditions.
  • Rules regarding disparagement or criticism of the employer as opposed to civility rules regarding disparagement of employees.
  • Rules regulating use of the employer’s name as opposed to use of the employer’s logo or trademark.
  • Rules generally restricting speaking to the media or third parties as opposed to rules speaking to the media on the employer’s behalf.
  • Rules banning off-duty conduct that might harm the employer as opposed to rules banning rude, insubordinate, or disruptive behavior at work.
  • Rules against making false or inaccurate statements as opposed to making defamatory statements.

The third category of rules is generally unlawful because they interfere or prohibit with guaranteed rights of employees:

  • Confidentiality rules that specifically prohibit employees from sharing information regarding wages, benefits, or working conditions.
  • Rules against joining outside organizations or voting on matters concerning the employer.