In December 2017, the NLRB issued a decision in Boeing Corp., which altered the Board’s test concerning the validity of workplace rules. To further clarify the decision and current state of the law, the NLRB’s General Counsel issued a Memo (GC Memo 18-04) concerning the impact of the decision. GC Memo 18-04 expands upon the placement of certain rules into the three categories outlined in the Boeing decision.

For background, the test formerly employed by the Board asked whether an employee “would reasonably construe” a workplace rule – often found in a handbook or policy manual – to interfere with his or her protected rights under the Act. The Boeing decision now requires the Board to balance the interests of employees and employers when deciding whether a rule inhibits employees from exercising their Section 7 rights.  Accordingly, the Board in Boeing classified rules into three different categories.

Category One

Rules that fall within category one are rules that, on their face, do not violate the NLRA. Thus, an employer is free to maintain them without committing an unfair labor practice.  According to the GC, the following rules fall within this category:

1. Civility rules
2. No photography/No recording rules
3. Insubordination rules
4. Disruptive behavior rules
5. Confidentiality rules (unless applicable to employee/wage information)
6. Rules against defamatory/harassing conduct

It is important to note that while an employer is free to maintain these rules, it could still commit an unfair labor practice by applying the neutral rule in a discriminatory manner, i.e., to penalize protected activity. For example, a civility rule will not standing alone violate the Act, but an employer could nonetheless commit an unfair labor practice by penalizing an employee for lawfully picketing based on the civility rule.

Category Two

Some rules are difficult to categorize on their face. Thus, the Board has reserved the following types of rules to be evaluated on a case-by-case basis:

1. Generally phrased conflict of interest rules (without mention of unions)
2. Generally phrased confidentiality rules (where they do not specifically discuss employee/wage information)
3. Rules about use of employer’s name (not its logo or trademark)
4. Rules about speaking to the media (as an employee, not on behalf of the employer)

These are just some examples of rules that will demand a case-by-case review by the Board.

Category Three

Lastly, an employer can never maintain some types of rules. Some examples are:

1. Rules prohibiting employees from joining unions or outside groups
2. Confidentiality rules that specifically prohibit discussion of employee/wage information

Additionally, other rules that will fall into category three would include any rule that the Board has found to be expressly protected by the Act (e.g., a blanket rule against striking).

As you can see, the substance of the rules and the circumstances in which they apply can dictate the category in which the rule will fit.  For instance, the GC Memo mentioned certain types of confidentiality rules under each category.  So, the category framework of the Boeing decision should be helpful in evaluating allegedly unlawful rules, and the GC Memo provides guidance with that task. Still, it will remain to be seen how many rules will neatly fit into Category One or Category Three as Boeing is applied in the future.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.