On the heels of three memoranda from its General Counsel, multiple ALJ decisions, and even one or two decisions of the full Board addressing employer social media and communications policies over the last couple of years, the National Labor Relations Board (NLRB)’s decision last week in DirecTV, which held that DirectTV’s policies restricting certain employee communication were unlawfully overbroad, might be viewed by some as rather predictable. Nevertheless, despite the uncertain validity of recent Board decisions in general in light of the D.C. Circuit’s Noel Canning decision (see our blog post from yesterday for more discussion of the Noel Canning decision), DirecTV is instructive precisely because of its apparent routine nature. In short, as Board decisions related to social media and employee communications become more predictable and routine, the more the employer community has some reasonable assurance that it can craft policies that can withstand NLRB scrutiny.
Communication with the Media:
DirecTV had two policies relating to communications with media that were challenged in this case. The first, a handbook policy, said, simply, “Do not contact the media.” The NLRB said that this policy violated employee rights under Section 7 of the National Labor Relations Act (NLRA) because it covered employee comments to reporters about labor disputes. The Board did offer some guidance about what might be required of a permissible policy, finding that the rule should have differentiated between protected (by Section 7) statements and non-protected statements, like those that are maliciously false.
The second media communication policy, a “Public Relations” policy on the company intranet, said, in part, “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” The Board struck down this policy as well, holding that it would prevent workers from expressing disagreement with DirecTV to the media about labor disputes, including those about wages, hours, or terms and conditions of employment. These rights are protected by Section 7 of the NLRA. The Board noted that the rule made no attempt to limit its application to statements about proprietary information, which presumably would have been permissible.
Communication with Law Enforcement:
The same handbook policy on media communication also addressed communication with law enforcement. The policy stated that if law enforcement “wants to interview or obtain information regarding a DIRECTV employee . . . the employee should contact the Security department” who would handle the inquiry. The Board held that this policy would reasonably be understood by employees to require them to contact security before cooperating in an NLRB investigation of an unfair labor practice charge—even though the NLRA protects employees’ rights to file an unfair labor practice charge and provide information to the NLRB in an unfair labor practice investigation. The Board also found that it was overbroad to the extent it affected employee contact with other law enforcement officials concerning wages, hours, or working conditions. While the Board did not give examples, this would include communications with the Department of Labor, Ohio Bureau of Wage & Hour Administration, the Occupational Safety and Health Administration (OSHA), or Ohio Bureau of Workers’ Compensation.
The NLRB similarly struck down a handbook policy that said that employees should “[n]ever discuss details about [their] job, company business or work projects with anyone outside the company” and “[n]ever give out information about customers or DIRECTV employees.” Employee records were expressly included as confidential company information. The Board held that this policy would lead employees to believe that they were restricted in discussing wages, hours, and terms and conditions of employment—again, something Section 7 protects—and restricted in communicating with union representatives, Board agents, and other governmental agencies about workplace matters—which is also protected by the NLRA.
Finally, the Board struck down an intranet policy that prohibited employees from blogging, entering chat rooms, posting messages on public websites, or otherwise disclosing non-public company information. No definition of “company information” was given. “The Board read the previous confidential information policy in conjunction with this policy to conclude that it included discussion of employee records. The Board held that “company information” reasonably could be interpreted to include wages and other information about terms and conditions of employment, which, as mentioned above, cannot be restricted.
Attempted Repudiation of the Unlawful Rules:
During the challenge of these policies, DirecTV rescinded the policies to avoid an unfair labor practice finding. For a repudiation to be a successful defense, it must be timely, unambiguous, specific in nature to the coercive conduct, and untainted by other unlawful conduct. It must also be publicized to employees that going forward, Section 7 rights will not be interfered with. The Board held that DirecTV failed to timely repudiate the policies because the attempted repudiation occurred one year after the rules were put in place and only after a complaint was filed. The Board also found the repudiation ineffective because DirecTV failed to admit wrongdoing, instead publishing the repudiation as an attempt to “clarify” its intent behind the policies.
DirecTV was ordered to rescind the policies and inform employees company-wide that the policies had been revised or rescinded.
Bottom Line: At this point, employers must understand that any social media or similar communications policies that can be interpreted as restricting employees’ rights to communicate with each other or the outside world regarding the terms and conditions of their employment will be struck down by the NLRB. As we have indicated in the past, employers are encouraged to narrowly tailor their policies or provide examples to make it clear that the policies do not have such unlawful objectives.