An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

As a result of this balancing consideration, the Board created the following three categories of employment rules or policies:

 Category 1 includes rules that are lawful to maintain because either the rule does not prohibit or interfere with NLRA-protected rights, or the potential adverse impact on those rights is outweighed by the business justifications. An example the Board gave of such a rule is one that requires employees to maintain basic standards of civility in the workplace.  Category 2 includes rules that warrant individualized scrutiny of the balance between the rights and the justifications.  Category 3 includes rules that are unlawful to maintain because they would limit or prohibit protected conduct and the business justifications do not outweigh the limitation of those rights. An example of a Category 3 rule would be one that prohibits employees from talking about their wages with each other.

The Board explained that even if a certain rule is legal to maintain, some applications of a rule may be impermissible if they are found to be too much of an infringement on protected activity. For example, while an employer may maintain a policy requiring civility in the workplace, if that employer uses the policy to punish employees engaging in a work-related dispute that is protected by the NLRA, then the Board may find the discipline violated the NLRA. On June 6, 2018, the NLRB’s General Counsel issued new guidance to employers on what types of policies and rules are permitted under Section 7 in light of The Boeing Company decision and the new balancing test. 1830 This recent guidance explains that the following types of rules are generally lawful to maintain and are considered as Category 1 rules:

 Civility rules that prohibit rude or discourteous behavior, conduct that impedes harmonious interactions, or disparaging company employees.  Rules that prohibit the use of cameras or recording devices during working time.  Rules that prohibit insubordination, unlawful or improper conduct, uncooperative behavior, refusal to comply with orders or perform work, or other on-the-job conduct that adversely affects the employer’s operations.  Rules that prohibit boisterous, disruptive, or disorderly conduct.  Rules that protect an employer’s confidential, proprietary, or customer information that do not mention employee or wage information.  Rules that prohibit defamation, slander, and misrepresentation.  Rules that require authorization from the employer to speak on behalf of the employer  Rules that prohibit use of the company’s logo or intellectual property without authorization

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 411