NLRB Issues Memo on Employer Handbook Rules

Author: Robert S. Teachout, XpertHR Legal Editor

June 11, 2018

Guidance from the National Labor Relations Board (NLRB) gives employers more latitude in drafting workplace rules, including rules regarding workplace civility. A memo from NLRB General Counsel Peter Rob directs regional directors to shift the presumption about whether a work rule violates the National Labor Relations Act (NLRA) in favor of employers. The memo was issued to provide guidance on the standards to use in reviewing work rules following the NLRB's Boeing decision in December 2017.

In the memo, Robb noted that the Boeing decision criticized and loosened the previous standard for reviewing facially neutral work rules. Those standards prohibited any rule if it could be interpreted as covering protected activities, as opposed to prohibiting only rules that would be so interpreted.

Under the new standard:

  • Ambiguities in facially neutral rules are no longer interpreted against the employer; and
  • Generalized provisions are not to be interpreted as banning all activity that could conceivably be included.

The guidance also points out, however, that a neutral handbook rule does not render protected activity unprotected. Employers' rules and how they are enforced still may run afoul of the NLRA in some instances, specifically:

  • Rules that specifically ban protected concerted activity, or that are promulgated directly in response to organizing or other protected concerted activity, remain unlawful; and
  • Application of a facially neutral rule against employees engaged in protected concerted activity is still unlawful.

The Boeing decision was one of several issued in December during the final week of a Republican majority on the Board led by then-Chairman Phillip Miscimarra, who retired immediately thereafter. The Board was split 2-2 between Democrats and Republicans until April, when John Ring was confirmed and appointed as the new Chairman.