You Can Say That! New NLRB Stance Allows For Expanded Speech and Conduct Restrictions in Employee Handbooks

July 12, 2018

It has been a common misconception among non-union employers that they do not need to be concerned about the National Labor Relations Act (NLRA) because it only applies to union organization or bargaining. Yet, under President Obama’s administration, the National Labor Relations Board (NLRB) and Administrative Law Judges (ALJ) demonstrated a willingness to expand the reach of the NLRA to an employer’s human resource policies and procedures.  However, with the new administration came changes at the NLRB.  It appears that the NLRB is taking a more narrow approach to the NLRA’s reach and therefore, employer policies are much more likely to be upheld.

Under Section 7 of the NLRA, “[e]mployees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities[.]” Section 8 of the NLRA further provides that an employer commits an “unfair labor practice” if the employer tries to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

As the NLRB started to expand its view of what actions might constitute an unfair labor practice, employers found their personnel manuals and related procedures being challenged by rulings that condemned policy language addressing at-will employment and social media restrictions, and criticized disciplinary actions based on employee violations of personnel manuals.  However, recent pronouncements indicate that the NLRB is now taking a different view on the subject of handbook policies.

Last month the NLRB’s Office of the General Counsel issued a comprehensive Memorandum (GC 18-04) titled “Guidance on Handbook Rules Post-Boeing.”  In it, the General Counsel noted that the NLRB had reassessed the issue of work rules and Section 8(a)(1) of the NLRA.  The General Counsel further noted that in its decision in The Boeing Company, 365 NLRB No. 154, the NLRB developed a different test for analyzing workplace policies and the NLRA.  In particular, “the Board established a new standard that focused on the balance between the rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline and productivity in the workplace.”  Within the Memorandum, the General Counsel also outlined multiple examples of “Rules that are Generally Lawful to Maintain,” “Rules Warranting Individualized Scrutiny,” and “Rules that are Unlawful to Maintain.”

While the Memorandum is a good source of information regarding the NLRB’s new views on handbook policies, employers should continue to review their personnel manuals to ensure that they aren’t unwittingly violating the law.

If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at or (608) 257‑2281 or your Stroud attorney.

DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice.  This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship.  You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.