Restricting Outside Communications; How Far Can You Go?

by Butler Snow LLP

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 newsBoard 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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Butler Snow LLP | Attorney Advertising

Written by:

Butler Snow LLP

Butler Snow LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.