3 Memos and 3 Categories
NLRB Provides Insight on How it Will Address Employer Policies
On July 13, 2018, the General Counsel of the National Labor Relations Board (NLRB or Board) released three advice memos providing guidance to employers about how the NLRB will evaluate handbook policies and work rules under the new Boeing standard established in December 2017. These advice memos cover intellectual property and confidentiality policies (Lyft, Inc.) and social media policies (Kuhmo Tires).
Under the Boeing standard, when evaluating a policy, rule, or handbook provision that, when reasonably interpreted, could potentially interfere with the exercise of an employee’s NLRA rights, the Board will use a test that balances the employee’s rights under the NLRA against the employer’s legitimate justification for the rule.
The Board will assign the policy or rule to one of three categories:
- Category 1 includes rules that are lawful to maintain. These rules, when reasonably interpreted, do not prohibit or interfere with the exercise of NLRA rights, or the potential adverse impact on protected rights is outweighed by justifications associated with these rules.
- Category 2 includes rules that warrant individualized scrutiny. Each case will be examined to determine 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 includes rules that are unlawful to maintain. These rules would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.
In the Lyft, Inc. advice memos, the Division of Advice examined two Lyft work rules that were challenged as unlawfully overbroad by members of the Teamsters Union (Joint Council 7).
The first was an intellectual property policy prohibiting the use of company logos without written approval. The division found it to be a Category 1 rule and further noted that employers have a significant interest in protecting their intellectual property — including logos, trademarks, and service marks — and that such property can be worth millions of dollars.
The second was a confidentiality policy prohibiting use or disclosure of proprietary and confidential information that includes “user information.” The division also found it to be lawful, reasoning that employees would not interpret the rule to prohibit the sharing of information about working conditions or employee names and contact information. It determined the rule is primarily directed at prohibiting the disclosure of “technical, financial, strategic, and other proprietary” information, and does not specifically reference “employee information.”
In the Kuhmo Tires advice memo, the division analyzed the termination of an employee who violated Kuhmo Tires’ social media policy. The employee had — in the context of a union organizing campaign — posted a photograph of a team leader’s bonus request form in a closed social media group shared with other employees.
The division concluded that, although the employee was otherwise engaged in protected concerted activity when posting the form, the conduct was not protected because he photographed and disseminated the form knowing it had been improperly taken from the team leader’s desk. The employer therefore did not violate section 8(a)(1) of the NLRA by discharging the employee.
The division also concluded that the employer’s social media policy is lawful under Boeing because, when reasonably interpreted, it would not be viewed as restricting employees’ section 7 rights. Rather, the social media policy reasonably requires employees to protect the employer’s confidential and trade secret information on social media.
The Lyft and Kuhmo advice memos provide valuable insight into how the NLRB is going to apply the Boeing balancing test to handbook policies and work rules going forward.
Employers should review their employee handbook policies and work rules in light of the new standard and accompanying advice memos. This review should include an examination of applicable state laws. For example, more than half of the states have passed legislation that limits employer access to employee social media accounts. If you have questions about the lawfulness of a given policy, contact your legal counsel.
We Can Help
We’ve been covering this and will continue to provide analysis for our readers — read our previous posts for background information:
- Federal Employment Law Update – June 2018
- Nine HR Policies Are Legal Again Says NLRB General Counsel
- An Early Gift for Employers: Recent NLRB Decisions Create More Predictability
ThinkHR customers can find up-to-date, state-specific policy language in the Employee Handbook Builder, plus expert compliance guidance on labor relations, workplace conduct, and many other topics in Comply. Log in to use these valuable tools.