Federal Employment Law Update – June 2018

NLRB: Guidance on Handbook Rules Post-Boeing

On June 8, 2018, National Labor Relations Board (NLRB) General Counsel, Peter B. Robb, released a memorandum (GC 18-04) providing guidance to regional offices under the NLRB’s decision in Boeing. Per Boeing, the NLRB evaluates facially neutral handbook policies and work rules by a balancing test of impact versus justification. Specifically, the potential impact of an employer’s (workplace and handbook) policies and work rules on employees NLRA-protected rights versus the employer’s legitimate justifications for maintaining the policy or rule.

This balancing test was broken down into the following three categories:

• Category 1: Rules that are generally lawful to maintain.
• Category 2: Rules warranting individualized scrutiny.
• Category 3: Rules that are unlawful to maintain.

In the memo, the general counsel provided in-depth guidance, along with application, of the three categories of rules for regional offices to use when investigating and processing cases. For example, regional offices were directed as follows:

• Ambiguities in work rules are no longer interpreted against the drafter (employer), and generalized provisions should not be interpreted as banning all activity that could conceivably be included.
• Well-established standards regarding certain kinds of work rules where the NLRB has already struck a balance between employee rights and employer business interests remain in place.
• The application of a facially neutral rule against employees engaged in protected concerted activity is still unlawful and a neutral handbook rule does not render protected activity unprotected.

Basically, the guidance provides insight as to how the holding in Boeing will be applied to workplace policies, rules, and company handbooks going forward.

Read the guidance