NLRB Pans Confidentiality Footer in Employee Handbook, Sustains Social Media, False Allegations, Outside Employment, Outside Speaking, and Employment Reference Policies as Boeing Category 1(a) Rules | Practical Law

NLRB Pans Confidentiality Footer in Employee Handbook, Sustains Social Media, False Allegations, Outside Employment, Outside Speaking, and Employment Reference Policies as Boeing Category 1(a) Rules | Practical Law

In G&E Real Estate Management Services, Inc. (d/b/a Newmark Grubb Knight Frank), the National Labor Relations Board (NLRB) held that social media, false allegations, outside employment, outside speaking, and employment reference policies were Boeing Category 1(a) rules, but a confidentiality footer in an employee handbook was an unlawful Category 3 rule.

NLRB Pans Confidentiality Footer in Employee Handbook, Sustains Social Media, False Allegations, Outside Employment, Outside Speaking, and Employment Reference Policies as Boeing Category 1(a) Rules

by Practical Law Labor & Employment
Law stated as of 02 Aug 2023 • USA (National/Federal)
In G&E Real Estate Management Services, Inc. (d/b/a Newmark Grubb Knight Frank), the National Labor Relations Board (NLRB) held that social media, false allegations, outside employment, outside speaking, and employment reference policies were Boeing Category 1(a) rules, but a confidentiality footer in an employee handbook was an unlawful Category 3 rule.
NOTE: See the UPDATE at the end of this resource for subsequent developments affecting this decision.
On July 16, 2020, in G&E Real Estate Management Services, Inc. (d/b/a Newmark Grubb Knight Frank), the panel (Board) heading the NLRB's judicial functions held that:
  • A provision in a policy concerning investigating and resolving employee complaints (including complaints of discrimination, harassment, or retaliation) stating that employees who make frivolous complaints or intentionally or recklessly make false allegations may be subject to appropriate discipline was a lawful Boeing Category 1(a) rule, because employees would reasonably interpret the policy:
    • as concerning intentional or reckless falsehoods, which the NLRA does not protect; and
    • not as deterring employees from engaging in protected concerted activity with adverse consequences for making innocent factual errors when raising group concerns.
  • An "Outside Employment and Business Activities" policy that precluded employees from participating, without prior written notice to and approval from the employer, in outside work activities that might create a conflict of interest was a lawful Boeing Category 1(a) rule because employees would reasonably interpret the policy:
    • by its express terms as aiming to prevent business conflicts of interest from outside work activities, including employment, consulting, or board memberships and not mere membership in outside organizations or run-of-the-mill volunteering; and
    • not as precluding union organizing activity, which differs from the categories of activities described by the policy, or holding union leadership or other paid union positions, which do not implicate the rule's stated purpose of ensuring regulatory compliance and avoiding conflicts of interest.
  • A "Reference Inquiries and requests for Employee Information Policy" that directed employees not to provide a written reference for or supply information regarding current or former employees without the HR department's permission was a lawful Boeing Category 1(a) rule because employees would reasonably interpret the policy:
    • as concerning formal reference requests and similar inquiries about employees; and
    • not as concerning discussions about wages or other protected discussions amongst themselves or with outside union representatives.
  • A company property policy providing that employer property (including identified tangible property, funds, premises, equipment, and intellectual property, but not the email system which was covered in a separate policy) must be used solely for the employer's benefit and business purposes and not for personal benefit was a lawful Boeing Category 1(a) rule because employees would reasonably interpret this policy:
    • as a general declaration of the employer's property rights; and
    • not as a blanket prohibition of solicitation or other protected activity at the facilities.
  • A social media policy that makes clear that personal social media use outside of working time is not prohibited generally and provides the following guidelines to employees is a lawful Boeing Category 1(a) rule:
    • be aware that social media posts are not necessarily private, and in most instances cannot be deleted once shared;
    • avoid using the employee's company email address or contact number and if the employee's employment with the employer is apparent, make clear that the employee does not represent the employer (unless specifically authorized) and that the views expressed are those of the employee rather than the employer;
    • avoid false or misleading posts;
    • avoid use or disclosure of confidential information (defined elsewhere) of the employer, its clients, business partners, or staff;
    • avoid violating the employer's policies or laws, such as by engaging in conduct that violates the company's prohibitions against intimidation, threats of violence, discrimination, harassment or retaliation, unauthorized use of others' intellectual property, or spamming; and
    • seek guidance from the employer when unsure how to comply.
  • An outside speaking and writing activities policy that precluded employees from participating, without prior written notice to and approval from the employer, in outside writing or publishing activities, speaking engagements relating to the employer or any of its affiliates, any of the employer’s businesses, industry, or markets in which the employer participates, industry seminars, and other similar activities was a lawful Boeing Category 1(a) rule because employees would reasonably interpret the policy:
    • as concerning only professional speaking or writing engagements that could be viewed by the audience as speaking on the employer's behalf; and
    • not as applying to speaking at a union meeting or as part of other protected activity.
  • An employee handbook footer "Confidential—For Internal Use Only" printed on each page of the employee handbook was an unlawful Boeing Category 3 rule because:
    • employees would reasonably interpret the footer to prohibit sharing the employee handbook or its terms and conditions with outside parties, such as unions;
    • employees had no reason to know, as the employer asserts, that the confidentiality footer was a notation intended only for the administrative purpose of instructing company webpage administrators to post the handbook on the intranet rather than public website; and
    • the employer offered no justification and the NLRB would not suppose there is any justification for generally designating an employee handbook confidential that would outweigh the adverse impact on Section 7 activity and NLRA rights.
(369 N.L.R.B. No. 121 (July 16, 2020).)
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).