NLRA limitations on employee handbooks and policies

Yesterday, I guest-taught labor law (specifically, social media and the NLRA) at Penn State Law. We covered the NLRB's review of employee handbooks and policies. What makes a policy overbroad, and therefore unlawful under the NLRA?

Not official use.

I'd say it's a question I get all the time, but the truth is that it's a question I almost never get. Most employers don't even realize it's an issue. "NLRA? I don't have any union employees" - it's not that simple. Even non-union employees have the right under the NLRA to engage in protected concerted activity, not to mention union organizing activities. So, employee handbooks must not infringe on those rights.

At the end of 2017, the NLRB issued its opinion in Boeing, announcing a new standard of review for employee handbooks. The Board placed emphasis on balancing the employer's business justifications for a policy with the employee's NLRA rights:

Under the standard we adopt today, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things:  

(i) the nature and extent of the potential impact on NLRA rights, and 

(ii) legitimate justifications associated with the rule.

This is a more employer-friendly rule, although its vagueness will be difficult for employers to apply prospectively. The Board provided some clarification with three categories of policies:

• Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement in this case, the “harmonious interactions and relationships” rule that was at issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civility.

• Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications. 

• Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that prohibits employees from discussing wages or benefits with one another.