Legality of Workplace Rules Clarified by National Labor Relations Board

On October 10, 2019, the National Labor Relations Board (“Board”) took a welcomed step in clarifying the confusion created by the Obama Board’s decisions on workplace rules and employee handbooks. In LA Specialty Produce Company, 368 NLRB No. 93 (2019), the Board held that two work rules did not violate employees’ Section 7 rights and are lawful – rules protecting the confidentiality of an employer’s client and vendor list; and barring employees, when approached by the media from speaking on the employer’s behalf.

Confidentiality Rule

The employer’s confidentiality rule, in LA Specialty Produce, in relevant part, required employees to preserve the confidentiality of employer information, “regarding matters that are confidential and proprietary of [Respondent] including but not limited to client/vendor lists.” The Board held the rule to be lawful under The Boeing Company’s, 365 NLRB No. 154 (2017) Category 1(a), which provides that a rule is lawful to maintain because, when reasonably interpreted, the rule does not interfere with employees’ rights under the Act. The Board explained that a reasonable employee would not view the policy as prohibiting discussions with or about clients or vendors. Rather, the rule applies only to protecting the employer’s nonpublic proprietary records, which contain sensitive information about pricing and discounts.

Media Contact Rule

In LA Specialty Produce, the employer’s Media Contact Rule barred employees, when “approached for interview and/or comments by the news media,” from providing any information because the employer’s president is the only individual authorized to speak on the employer’s behalf. The Board concluded that a reasonable employee would understand that the rule prohibits only speaking on behalf of the employer, when the employer has an otherwise designated spokesperson. The Board clarified that the rule did not prevent employees from ever speaking to the media, but rather only on their employer’s behalf, if and when the employees are approached by the media. Accordingly, the Board determined the Media Contact Rule at issue was lawful under Boeing’s Category 1(a).

Employer Takeaways From LA Specialty Produce

While it is perilous to predict how the Board will analyze other workplace rules and policies, LA Specialty Produce provides a clear signaling that the current Board, when given the opportunity, will find that certain work rules that were previously found unlawful will now be deemed lawful. Employers with union and non-union workforces should take this opportunity to review their work rules and policies to ensure that they comply with Section 7.

For more information regarding this and other developments arising from Board decisions, please contact Patrick W. McGovern, Esq., Partner in the firm’s Employment Litigation and Labor Law Practice Groups,  or Paul Mazer, Esq., or 973-533-0777.