NLRB Approves Confidentiality, Standards of Conduct, Non-Disparagement, Internet and Social Media Policies Under Boeing | Practical Law

NLRB Approves Confidentiality, Standards of Conduct, Non-Disparagement, Internet and Social Media Policies Under Boeing | Practical Law

In Motor City Pawn Brokers Inc., the National Labor Relations Board (NLRB) held that confidential information, standards of conduct and civility, non-disparagement, and email, internet, and social media policies were lawful Boeing Category 1 rules.

NLRB Approves Confidentiality, Standards of Conduct, Non-Disparagement, Internet and Social Media Policies Under Boeing

by Practical Law Labor & Employment
Law stated as of 02 Aug 2023 • USA (National/Federal)
In Motor City Pawn Brokers Inc., the National Labor Relations Board (NLRB) held that confidential information, standards of conduct and civility, non-disparagement, and email, internet, and social media policies were lawful Boeing Category 1 rules.
NOTE: See the UPDATE at the end of this resource for subsequent developments affecting this decision.
On July 24, 2020, in Motor City Pawn Brokers Inc., the panel (Board) heading the NLRB's judicial functions held that:
  • A rule prohibiting disclosure of confidential information was a lawful Boeing Category 1(a) rule because employees would reasonably understand, from the numerous examples of confidential information specified in the Employment Agreement and the Employee Handbooks, that they are limited to prohibiting disclosure of legitimately confidential and proprietary information rather than information pertaining to employees' employment terms and conditions.
  • A rule establishing employee standards of conduct and addressing civility rules such as use of inappropriate language, workplace bullying, and an honesty requirement was a lawful Boeing Category 1(a) rule because it encompassed commonsense, facially neutral rules that require employees to foster "harmonious interactions and relationships" in the workplace and adhere to basic standards of civility.
  • A non-disparagement rule was a lawful Boeing Category 1(b) rule because the employer's substantial, legitimate justifications (ensuring employees' loyalty, conveying to employees its expectation that they perform their jobs in a manner making the employer proud and without sabotaging or otherwise impairing its operations, and protecting customer relationships) outweighed the adverse impact on employees' Section 7 activity. The Board noted that rule does not include any limits on employee communications with other employees (compare with Union Tank Car Co., 369 N.L.R.B. No. 120 (July 17, 2020) (rule prohibiting communications harmful to the employer's reputation between employees was unlawful)).
  • A rule limiting employee use of email, internet, and social media was a lawful Boeing Category 1(a) rule because employees would reasonably understand that the rule:
    • is limited to obviously proprietary information; and
    • would not prohibit disclosure of information about employees' terms and conditions of employment or about contact or other applicable information for union and other protected activities.
  • A rule requiring employees to use computers, printers, fax machines, and other equipment exclusively for business activities, permitting employees to access the internet and electronic communications systems only to assist in the performance of their jobs, and prohibiting employees from using the employer's equipment for sending personal emails, chatting, using Facebook and other social networking sites, and blogging was a Boeing Category 1(a) rule because the Board has declined to find that employees have a Section 7 right to use an employer's electronic resources for internet and related activity.
(369 N.L.R.B. No. 132 (July 24, 2020).)
The Board also adopted an administrative law judge's conclusions that the employer unlawfully:
  • Maintained the following rules, which were each Boeing Category 3 rules:
    • a mandatory arbitration agreement that interferes with employees' rights to file charges with, participate in, and access the NLRB and its processes by, among other things, including an express waiver of an employee's right to adjudicate any claim against the employer at a federal agency;
    • an indemnity provision in its employment agreement and a contract and receipt, which, among other things, unlawfully require employees to defray the employer's costs of enforcing the unlawful arbitration agreement;
    • a rule prohibiting unauthorized disclosure of employee handbooks; and
    • rules in its employee agreement, employee handbook, and updated handbook restricting employees' association with and solicitation of other employees.
  • Discharged employees for failing to sign the employment agreement and contract and receipt requiring them to be bound by the employer's work rules, including the unlawful arbitration and indemnity provisions (see Alorica, Inc., 368 N.L.R.B. No. 25, slip op. at 1, n. 3 (July 25, 2019) (employer unlawfully discharging employees for refusing to sign arbitration agreement restricting their access to the NLRB and its processes)).
Employers should consider the Board's analysis when drafting or reviewing these types of policies and employee handbooks.

UPDATE

On August 2, 2023, a Board majority adopted a new burden-shifting standard for evaluating facial challenges to employer work rules that do not expressly restrict employees' protected concerted activity under Section 7 of the NLRA, overruling Boeing and the subsequent work rules decisions applying the categorical classification system articulated therein (Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023); for more information on this decision, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules).