Confidentiality, Public Relations and Blogging Policies Held to Be Unlawful
As we reported in our Employment Law News article in January, the NLRB has been very active in challenging any employer policy that could reasonably be understood by an employee to interfere with rights protected under the National Labor Relations Act (“NLRA”). The NLRA protects private employees – whether or not a union is involved – in freely discussing wages, hours and working conditions and joining together for their mutual aid and protection. Many common employer policies dealing with confidentiality, external communications and social media have been held to have been unlawfully overbroad and have been ordered to be rescinded. Now in a new case decision by the NLRB involving DirecTV, specific language in four employer policies was found to be illegal.
Here is what the NLRB ordered DirecTV to do with specific language from four of its policies:
ORDERED: Cease and desist from promulgating and maintaining policies that contain the following language:
- “Do not contact the media” and “If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by telephone/email, the employee should contact the Security department in El Segundo, Calif., who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.”
- “Never discuss details about your job, company business or work projects with anyone outside the company. . . never give out information about . . . DIRECTV employees [and] employee records.”
- “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.”
- “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.”
What to Do Now?
This far-reaching decision was issued by the NLRB even though a federal appeals court ruled, as we reported in our HR Insights Blog, that two of the current three NLRB members were not constitutionally valid recess appointments. Because of that ruling, the power of the NLRB to issue any decision due to the lack of a constitutional quorum is under intense legal challenge. The ultimate answer will likely come from the Supreme Court in a year or so. In the meantime, it is a good idea for private employers to understand what policies and language the current NLRB considers to be unlawful. Employers should consider reviewing all policies that contain similar language that might be seen by the NLRB to be unlawfully overbroad in restricting employee rights.
Reference: DirecTV U.S. and Intern’l Assoc. Machinists and Aerospace Workers, (NLRB Case No. 21-CA-039546, January 25, 2013)
If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
