Employee work rules and policies continue to be controversial at the National Labor Relations Board (NLRB). Under President Obama, the NLRB determined that many common employer policies and work rules violated the National Labor Relations Act (NLRA) because they interfered with and chilled employee rights to engage in protected concerted activity. The NLRB found these policies to be over-broad and to restrain employee rights to discuss with other employees their terms and conditions of employment. The current NLRB has been reversing several of these previous NLRB decisions regarding the lawfulness of various employee handbook policies. Recently, the NLRB revisited three employer rules regarding employee contact with the media.
In an advice memorandum issued on April 15, 2019, the Board stated that Universal Security’s rule prohibiting employees from talking to the media was unlawful and over-broad. The Universal policy directed employees who were contacted by media to immediately contact their supervisor. Two employees made statements to the media about several Universal policies including sick day and vacation day policies criticizing the employer. Both employees were terminated for violating the media policy. Universal stated that the employees’ comments to the media included sensitive security information and the NLRB General Counsel disagreed. The General Counsel recommended that a complaint be issued against Universal because it unlawfully maintained an over-broad rule banning employee communications to the media, and because both employees were terminated for engaging in protected concerted activity.
Policy Prohibiting Public Criticism of the Employer
The General Counsel concluded that a policy which prohibited employee criticism that the employer viewed as adversely affecting the business and reputation of Colorado Professional Security Services was unlawful. The General Counsel also challenged the lawfulness of a policy which prohibited employees from discussing their discipline with co-workers and clients. The General Counsel determined that the impact of these policies on employee rights outweighed the employer’s legitimate business interests.
Employee Letter to the Editor
An NLRB administrative law judge decided that Maine Coast Regional Health Facilities violated the NLRA by terminating an employee who wrote a letter to the editor criticizing the employer. The letter raised concerns regarding employee dissatisfaction and nurse staffing levels at the hospital. This letter violated the hospital’s policy against unapproved contact with the media. The administrative law judge held that the letter constituted protected concerted activity and ordered the hospital to reinstate the employee and pay back pay and benefits.
If you believe your company needs a policy regarding communication with the media, it is recommended that the policy only restrict those who have a right to speak on behalf of the company. The policy should not bar an employee from contacting the media. In addition, to the extent the objective of a media policy is to protect the disclosure of confidential or sensitive information, this should be clearly stated in the policy. The policy should distinguish a prohibition on disclosing sensitive, proprietary and confidential information from an overall prohibition against employees discussing their terms and conditions of employment.
Because of the often gray lines between what is and is not permissible in employee policies, employers should consult their counsel when developing policies which restrict an employee’s right to communicate with other employees or to contact the media, as well as when disciplining employees who speak to the media or others about work related matters.