Robert Frost observed in his 1914 poem “Mending Walls” that good fences make good neighbors. Well-written employee handbooks, policies and procedures similarly help employees understand their roles, rights and responsibilities while providing a framework for productive employer-employee relationships.  

The National Labor Relations Act (NLRA) gives employees the right to engage in protected concerted activities to address the terms and conditions of their employment. Something as simple as two employees discussing their wages in the workplace or on social media could be considered protected concerted activities.

The National Labor Relations Board (NLRB) has examined in recent years employer policies — particularly employee handbooks and social media policies — it believes could interfere with employee rights to address the terms and conditions of their employment.  

In Lutheran Heritage Village-Livonia (2004) , the NLRB held a work rule that didn’t otherwise violate the NLRA would be found unlawful if employees would reasonably construe it to prohibit NLRA rights. The board majority stated: “We will not conclude that a reasonable employee would read the rule to apply to [protected] activity simply because the rule could be interpreted that way.”  But the two dissenting members would have held the company’s verbal abuse and abusive language rules, as well as its no harassment rule, would reasonably tend to cause employees to refrain from voicing disagreement with their terms and conditions of employment. 

In a series of three memorandums issued in 2011 and 2012, the NLRB appeared to shift from the “would” to “could” standard. 

An employee’s termination was illegal because her swearing and sarcasm about the level of care provided by her employer in Facebook posts was objectively  “quite innocuous.”  

Policies prohibiting disparaging comments when discussing the company or the employee’s superiors, coworkers, and/or competitors or prohibiting “disrespectful conduct” were overly broad and unlawful.

A policy requiring employees to expressly state their social media comments are their personal opinions and not those of their employers would significantly burden the exercise of employee rights.

Social media rules prohibiting any activity that 1) violates, compromises or disregards reasonable expectations as to privacy or confidentiality; 2) prohibits any communication that constitutes embarrassment, harassment or defamation of the hospital or of any hospital employee; and 3) statements that lack truthfulness or might damage the reputation or goodwill of the employer or its employees were overbroad and restricted protected activities.

In 2017, the NLRB announced a new standard for evaluating workplace rules and policies. In Boeing, the board adopted a new test that recognized three distinct categories of workplace rules and policies.

Category 1 includes rules the board designates as lawful to maintain either because the rule, when reasonably interpreted, doesn’t prohibit or interfere with the exercise of NLRA rights; or the potential adverse effect on protected rights is outweighed by justifications associated with the rule. Civility rules fall within this category.

Category 2 includes rules that warrant individualized scrutiny in each case as to whether the rules prohibit or interfere with NLRA rights and, if so, whether any adverse effect on NLRA-protected conduct is outweighed by legitimate justifications.

Category 3 includes rules the board designates as unlawful to maintain because they prohibit or limit NLRA-protected conduct and the adverse effect on NLRA rights isn’t outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with one another.

Although particular rules might be lawful, the board held that applying such rules to employees who engage in NLRA-protected conduct could violate the act.

Jennifer Abruzzo, the new NLRB general counsel, announced her agenda and plan for managing BLRA cases in a memo to regional staff on Aug. 12. Regional directors are no longer permitted to take independent action on a wide variety of cases, but must refer the cases to the division of advice to “reexamine these areas and counsel the general counsel’s office on whether change is necessary.” These cases include application of the Boeing test to handbook rules including, but not limited to, confidentiality rules, non-disparagement rules, social media rules, media communication rules, civility rules, respectful and professional manner rules, offensive language rules and no camera rules. The memo also targets rules regulating employees’ rights to use an employer’s email system or other electronic platforms for workplace communications.

So how should an employer draft reasonable policies on workplace behavior, social media and the use of electronic systems?  

Even as the NLRB moves back to more stringent pre-Boeing standards, rules generally will pass muster that prohibit dishonesty or defamation; harassment and discrimination; or the use of work communication systems for such personal business or activities as viewing pornography, gambling and gaming.  

General civility rules requiring respect or courtesy are again suspect and will certainly be held illegal if used to limit legitimate discussion of pay or workplace issues.