On July 13, 2018, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released several memos authored by the Board’s Division of Advice, which offer further guidance to employers about how the Board will evaluate work rules under the new Boeing standard established in December 2017.
Intellectual Property and Confidentiality Rules Determined to be Lawful
The first advice memo analyzed intellectual property and confidentiality rules promulgated by Lyft Inc., which the Teamsters Union (Joint Council 7) challenged as unlawfully overbroad under the new Boeing standard. The intellectual property rule barred employees from making use of Lyft’s logo without written permission, and the confidentiality rule barred employees from using or disclosing “User Information” and other confidential and proprietary information relating to Lyft’s business. “User information” was defined as the personal information of both riders and drivers who use the Lyft platform.
The Division of Advice, in a memo dated June 14, 2018, determined that the policies in question are lawful under the Boeing standard. Regarding the intellectual property rule, the Division of Advice found that it is a Category 1 rule under Boeing. Thus, although some protected concerted activity might fall under the rule’s ambit, including fair use of an employer’s intellectual property on picket signs and leaflets, when reasonably interpreted, most employees would understand that the rule would prohibit only commercial and other non-Section 7 protected uses of the logo. Further, even if the rule could be interpreted by employees to prohibit the use of logos for protected activity, the rule is unlikely to deter using the logos or the protected activity itself. The advice memo makes clear that, when balanced against an employer’s significant interest in protecting its intellectual property, any peripheral impact on Section 7 rights is permissible.
The Division of Advice also found the confidentiality rule to be lawful, reasoning that it was unlikely to interfere with employees’ protected rights under the National Labor Relation Act. Employees would not reasonably interpret the rule to prohibit the sharing of 1) information about working conditions, or 2) employee names and contact information. Rather, the rule is primarily designed to prohibit the disclosure of “technical, financial, strategic, and other proprietary” information, and does not specifically reference “employee information.”
Social Media Policy Found to be Lawful
A second advice memo, dated June 11, 2018, analyzed Kumho Tires’ social media policy. Specifically, Kumho Tires fired an employee who violated its social media policy by posting a photograph of a team leader’s bonus request form in a closed social media group shared with other employees in the context of a union organizing campaign. The Division of Advice concluded that, although the employee was otherwise engaged in protected concerted activity when posting the form, the conduct was not protected because he photographed and disseminated the form after having received it from a co-worker, who the employee knew had improperly taken it from the team leader’s desk to another floor to photocopy. The employer therefore did not violate Section 8(a)(1) by discharging the employee.
The Division of Advice also concluded that the employer’s social media policy is facially lawful under Boeing because, when reasonably interpreted, it would not be viewed as restricting employees’ Section 7 rights. Rather, the social medial policy reasonably required employees to protect the employer’s confidential and trade secret information when engaging in social media communications.
These and other advice memos released from the General Counsel’s office provide employers with further guidance on how the Board will interpret work rules under the Boeing standard. Employers should review their employee handbooks and work rules, and consult with experienced counsel to make any recommended changes.