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The Board’s recent decision in DirectTV, 359 NLRB No. 54, represents another example of its ongoing effort to ensure the relevancy of the National Labor Relations Act in the 21st century by applying its protections to a broad range of personnel policies common among non-unionized employers. Many employers have issued policies intended to protect legitimate company interests, such as safeguarding the company’s confidential information or ensuring that only official company spokespersons make public statements on behalf of the company. Under the current Board, however, such common employer policies may be deemed to chill employee exercise of activity protected under the Act. Thus, for example, the Board has long held that employees have a protected right under Section 7 to discuss their wages, hours, and terms and conditions of employment with each other, with representatives of labor unions, with members of the media, and with the public in general. This includes a right to air disputes between employees and the company publicly. If the Board concludes that a generally applicable company policy is either overly broad or sufficiently ambiguous that it could reasonably be expected to deter an employee from engaging in protected communications, it will order the employer to rescind the policy.
In DirectTV, the Board invalidated three rules it found to be overly broad and/or ambiguous because they would potentially dissuade employees from discussing their wages, hours, and terms or conditions of employment with people outside of the company. One of the rules governed employee statements to the media, and advised employees that “[t]o ensure the company presents a united, consistent voice to a variety of audiences, these are some of your responsibilities related to communications . . . . Do not contact the media, and direct all media inquiries to the Home Services Communications department.” A similar rule, titled “public relations,” advised that “[e]mployees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” The Board concluded that both of these rules would prevent or dissuade employees from airing disagreements with the company in the media, and were therefore invalid.
The Board also concluded that two of the company’s confidentiality rules were similarly problematic. One rule advised employees to “never discuss details about your job, company business or work projects with anyone outside the company,” and “never give out information about customers or [company] employees.” This rule, the Board concluded, could not survive scrutiny under Section 7 because employees could reasonably construe “company business” to cover disputes between the company and its employees, and “information about employees” could include wage and benefit data, the identity of coworkers for use in organizing, and other similar topics. A similar rule governing use of the company’s electronic systems stated “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.” The Board concluded that the restriction against sharing “company information” on public discussion sites was overly broad and ambiguous because other company rules defined the phrase “company information” broadly to include data such as wage rates, employee disciplinary matters, and performance ratings.
Finally, the Board also invalidated an unrelated rule governing employee communication with “law enforcement” agents. The rule provided “[i]f law enforcement wants to interview or obtain information regarding a [company] employee, whether in person or by telephone/email, the employee should contact the security department.” The Board noted that its own agents, as well as wage and hour officials and governmental representatives charged with enforcing other workplace regulations could be construed to be representatives of “law enforcement,” and an employer cannot require its employees to contact the company whenever a Board agent seeks to interview them. It is worth nothing that there was no testimony at the hearing on the issue of employees being deterred or confused with regard to their Section 7 rights, and there was no underlying charge specifically alleging such.
Although the company attempted to repudiate the overbroad or ambiguous aspects of its rules prior to the hearing in this case, the Board found it ineffective. The Board explained its standard that repudiation of overly broad or ambiguous policies must be timely, unambiguous, specific in nature to the coercive conduct, and the repudiation must assure employees that, going forward, the employer will not interfere with the exercise of their Section 7 rights.
This case raises thorny issues about how or whether an employer can craft personnel policies that protect the company’s confidential business information, ensure that only authorized personnel make public statements on behalf of the company, and allow appropriately centralized coordination and oversight over a company’s communications with law enforcement and governmental personnel, while at the same time avoiding intrusion on employee rights under Section 7. Some practitioners suggest that policies must simply be very specific about the types of communications they are intended to govern, in order to avoid challenges of overbreadth or ambiguity. Others believe only inclusion of an express and detailed statement of employee rights under Section 7, referenced in every potentially problematic policy, will protect a company from the Board’s second guessing. Prior cases suggest that more general disclaimers will be considered ineffective.
Of course, narrowly drawn rules risk failing to reach situations they can and should cover, while detailed explanations of employee rights risk encouraging conduct an employer may reasonably prefer to avoid. Another alternative to these two options may be to forego promulgation of any written rule at all on these topics. That course too has its obvious shortcomings. The one thing that is certain is that now more than ever employers must craft their policies with Section 7 implications carefully in mind, or risk having their policies declared unlawful.
Both the employer and the union have appealed to the U.S. Court of Appeal for the D.C. and the Ninth Circuits, respectively. The D.C. Circuit issued an order on February 7, 2013, directing that the case be held in abeyance per Noel Canning v. NLRB, pending further order from the court.