Better Late Than Never: NLRB Releases Guidance on Employer Rules

By James Korte

On November 12, 2020, the National Labor Relations Board (“NLRB”) released an Advice Memorandum originally issued on February 22, 2019. See Advice Memorandum in Chipotle Mexican Grill (28-CA-229134). Despite the 21 month delay, the Memo provides much-needed guidance on the distinction between lawful and unlawful Employer rules under Boeing, 365 NLRB No. 154, slip op. at 3-4, 15 (Dec. 14, 2017).

The General Counsel’s Division of Advice considered whether the Employer violated the National Labor Relations Act (“NLRA”) by maintaining 1) a rule encouraging employees to “[b]e . . . objective” in their communications; and 2) a rule requiring employees to forward any inquiry, request for information, or subpoena from a government agency to the Employer. The Division concluded that the Employer’s ethical communications rule was lawful, but found the Employer’s rule restricting communication with government agencies unlawful.

The rule encouraging objectivity was found to be a lawful “civility” rule because “[t]he rule as a whole is primarily focused on the manner of prohibited employee speech, rather than the content of prohibited speech.” Boeing, 365 NLRB No. 154, slip op. at 3-4, 15 (Dec. 14, 2017). In contrast, the NLRB found the Employer’s rule requiring employees to forward “[a]ny inquiry, request for information, or subpoena from a government agency” unlawful because “[e]mployees would reasonably conclude that this rule prohibits them from providing evidence or otherwise cooperating in an investigation without first notifying the employer.” Under that rule, an employee could not privately contact the NLRB or the EEOC regarding a workplace complaint. In other words, it directly infringed upon employees’ rights to engage in mutual aid and/or to seek redress from government agencies.

The Memo clearly illustrates why only certain rules will ‘step over the line’ in the view of the NLRB. While the guidance is appreciated, employers should not get too comfortable, as a new administration could mean big changes at the NLRB on the subject of employer rules (and many other matters).