NLRB Division of Advice Finds Employer's Confidentiality, Cell Phone, and Parts of Social Media Rules Unlawful; Civility, Solicitation/Distribution, and Other Conduct Rules Lawful | Practical Law

NLRB Division of Advice Finds Employer's Confidentiality, Cell Phone, and Parts of Social Media Rules Unlawful; Civility, Solicitation/Distribution, and Other Conduct Rules Lawful | Practical Law

The Office of the General Counsel of the National Labor Relations Board (NLRB) has released an advice memorandum considering the lawfulness of policies in employee handbooks concerning conduct, solicitation, confidentiality, cell phone use, social media use, and more.

NLRB Division of Advice Finds Employer's Confidentiality, Cell Phone, and Parts of Social Media Rules Unlawful; Civility, Solicitation/Distribution, and Other Conduct Rules Lawful

by Practical Law Labor & Employment
Law stated as of 02 Aug 2023 • USA (National/Federal)
The Office of the General Counsel of the National Labor Relations Board (NLRB) has released an advice memorandum considering the lawfulness of policies in employee handbooks concerning conduct, solicitation, confidentiality, cell phone use, social media use, and more.
NOTE: See the UPDATE at the end of this resource for subsequent developments affecting this advice memorandum.
On June 14, 2019, the Division of Advice of the NLRB's Office of the General Counsel (Advice) released an advice memorandum, dated August 30, 2018, evaluating the legality of various employer policies under the Board's decision in Boeing Company (365 N.L.R.B. No. 154 (Dec. 14, 2017)).
Advice concluded that the employer's:
  • Conduct policy designating certain conduct as "inappropriate behavior" is lawful. This includes:
    • obtaining unauthorized confidential client information, which is a lawful Category 1 rule;
    • obtaining unauthorized confidential employee information, which is a lawful Category 2 rule;
    • rude, discourteous, or unbusinesslike behavior, which is a lawful civility policy and lawful Category 1 rule;
    • disturbances on company premises or creating discord with clients or fellow employees, which is a lawful disruptive behavior policy and a lawful Category 1 rule;
    • solicitation and distribution not in "good taste," which a lawful Category 2 rule;
    • unbusinesslike conduct that adversely affects the company services, property, reputation, or goodwill in the community, or interferes with work, which is a lawful Category 1 rule for on-duty conduct and a lawful Category 2 rule for off-duty conduct; and
    • disparaging language and illegal activities, which is a combination of civility policies and on-duty misconduct policies and a lawful Category 1 rule.
  • Confidentiality rule is unlawfully overbroad and could easily be interpreted to include wages and working conditions. Despite savings clause, this is an unlawful Category 2 rule.
  • Cell phone policy prohibiting use during working hours for personal use is an unlawful Category 2 rule.
  • Social media policy was partially lawful and partially unlawful, despite savings clause. Specifically, the policy's:
    • ban on using company electronic assets for social media is lawful (and the Board's holding in Purple Communications regarding the employer's email system should not be extended to social media accounts);
    • ban on posting derogatory information about the employer on social media, as well as requirement that employee take any grievances to the employer instead, is an unlawful Category 2 rule;
    • ban on posting disparaging material about employees is a lawful Category 1 rule;
    • ban on providing the employer's telephone number is unlawful; and
    • self-identification requirement is lawful.
The practical implications of this decision are as follows:
  • Advice memoranda are not binding precedent from the NLRB.
  • However, advice memoranda provide insights concerning:
    • which kinds of unfair labor practice (ULP) allegations the NLRB General Counsel is likely to prosecute;
    • what liability theories the NLRB General Counsel is developing and pursuing; and
    • how the NLRB General Counsel is extending, minimizing, combining, or parsing precedent to support prosecuting or dismissing those types of allegations and liability theories.

UPDATE

On December 16, 2019, in Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, the Board overruled Purple Communications, Inc. (368 N.L.R.B. No. 143 (Dec. 16, 2019); see Legal Update, NLRB Restores Employers' Right to Restrict Use of Email).

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).