On January 25, 2013, the National Labor Relations Board held that DirecTV's employee handbook contained unlawful rules restricting employees from communicating with media representatives and law enforcement officials and prohibiting disclosure of information about the company, its customers, and employees (DirecTV U.S. DirecTV Holdings LLC, 359 N.L.R.B. No. 54, January 25, 2013). The NLRB found the rules to be unlawful because they could reasonably be interpreted by employees as prohibiting them from engaging in activities protected by the National Labor Relations Act.
Section 7 of the NLRA, which applies both to unionized and non-union workplaces, provides that employees have the right "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." To be protected by this statute, the activity must be "concerted." The statute does not confine its protection to collective bargaining. The phrase "other mutual aid or protection" broadly reaches a very wide range of tangible and intangible work-connected employee concerns including pay, benefits, work assignments, shift schedules, safety, and even such things as the temperature and comfort of a workspace.
Company's Media Policies Too Broad
In the DirecTV case, the Board found that both of the company's policies on communications with media representatives were unlawful. One of the handbook provisions simply stated, "Do not contact the media." The Board found that this restriction was too broad and therefore unlawful because, under NLRB precedents, employees may make comments about labor disputes with media reporters. The Board found that it was significant that the rule "makes no attempt to distinguish unprotected communications such as statements that are maliciously false, from those that are protected." Similarly, the Board found that the company violated the NLRA by maintaining a public relations policy that included a statement: "Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations." According to the Board, this requirement would reasonably be understood by workers as preventing them from expressing any disagreement with DirecTV concerning wages, hours or terms of employment.
Law Enforcement Policy
Another DirecTV handbook provision informed employees that if "law enforcement" desired "to interview or obtain information regarding a DirecTV employee," the employees receiving the inquiry must contact the company's security department, which would handle the contact. However, Section 8(a)(4) of the NLRA protects the right of employees to file unfair labor practice charges or provide information to the Board. The Board concluded that DirecTV's handbook provision would reasonably be understood to include the NLRB as "law enforcement" personnel, and therefore the broadly worded rule "would lead reasonable employees to conclude that they would be required to contact [DirecTV's] security department before cooperating with a Board investigation." The NLRB acknowledged that an employer may have a legitimate interest in knowing about attempts by law enforcement officials to interview employees, but concluded that the DirecTV policy was ambiguous and therefore unlawful.
Confidentiality Rule was Overbroad
The NLRB similarly found that the company had violated the law by maintaining a handbook provision that told employees "[n]ever discuss details about your job, company business or work projects with anyone outside the company" and "[n]ever give out information about customers or DirecTV employees." The Board found that since these provisions referred to employees' jobs and fellow employees, this would lead employees to believe that they were restricted in discussing their wages, hours, and other employment terms. Further, "because the rule does not exempt protected communications with third parties such as union representatives, Board agents, or other governmental agencies concerned with workplace matters, employees would reasonably interpret the rule as prohibiting such communications, making the rule unlawful for that reason as well."
Limits on Communicating "Company Information"
Finally, the Board found that DirecTV maintained an overbroad policy that informed employees they "may not blog, enter chat rooms, post messages on public web sites or otherwise disclose company information that is not already disclosed as a public record." Specifically, the Board concluded that the phrase "company information" would reasonably be understood by employees to include employee ratings, or those of other employees. Finding that the restriction on disclosing "company information" was "[a]t the very least . . . ambiguous," the NLRB concluded that maintaining the policy constituted an unfair labor practice.
The DirecTV ruling is the most recent of several "Obama Board" decisions which aggressively apply Section 7 to employer policies and rules. Until recently, most employers, including the largest and most sophisticated companies in the nation, would not have imagined that federal labor law could have such far-reaching impact on ordinary, time-honored work policies. After all, the pertinent language of Section 7 of the NLRA has been in effect since 1935. Many of these recent NLRB decisions are being challenged in the courts. Until those appeals are resolved, which could be several years away, employers are left to choose among unclear options: 1) revamp all policies which could conceivably implicate "protected concerted activity," 2) abandon some policies and address those situations on a case-by-case basis, Or 3) assume the risk of leaving some policies as they are until the law becomes more clear.
These are not decisions that should be made without competent legal advice. If you have, or want to have, policies that regulate employee communications, we recommend that you contact the author of this article or another Butler Snow Labor and Employment attorney for guidance.