NLRB Upholds Restrictions on Employees’ Speech to Media

Although the decision in LA Specialty Produce favored the employer, media contact rules can still get companies in trouble if written broadly

The federal government’s labor watchdog is using a more employer-friendly test to determine whether employers unlawfully bar their workers from talking to the press.

The National Labor Relations Board on Oct. 10 ruled 3-1 that an employer’s media contact restriction, which limits the situations in which its employees can give comments to the press, isn’t unlawful. The board weighed whether LA Specialty Produce, a wholesale foods distributor in California, had a media contact rule on its books that impeded its employees’ rights to discuss their work conditions and other subjects protected by the National Labor Relations Act.

Using the new “balancing test” from its Boeing decision to judge the lawfulness of workplace rules, the board majority found that a reasonable employee wouldn’t construe LA Specialty Produce’s rule as interfering with their rights under Section 7 of the NLRA.

The LA Specialty Produce decision shows how employers have some wiggle room in drafting a lawful media gag rule in the eyes of the NLRB. But a rule that broadly prohibits employees from talking to the press could still run afoul of the NLRA, as the board has previously determined.

Also in that decision, the board majority held that the employer’s confidentiality rule, which forbade employees from disclosing the company’s proprietary client and vendor lists, didn’t violate the NLRA.

Many companies maintain media contact rules to help manage their public image and keep confidential information from reaching the press. It used to be mostly larger companies that kept such rules, but “it’s becoming more and more common,” said Christine Lamb, an attorney who is a partner at Fortis Law Partners in Denver.

Like the rules outlining what employees can or cannot say on social media, media contact rules in employee handbooks have been under NLRB scrutiny. The NLRB, however, now uses its more forgiving Boeing test that asks whether a rule could be “reasonably interpreted” by an employee to hinder their rights to concerted activity under the NLRA.

LA Specialty Produce’s media contact rule said that “[e]mployees approached for interview and/or comments by the news media, cannot provide them with any information.”

According to the board majority, however, a reasonable employee would read the next sentence to limit the scope of the gag rule: “Our President, Michael Glick, is the only person authorized and designated to comment on Company policies or any event that may affect our organization.”

The majority determined the media contact rule didn’t gag employees from speaking out about their work conditions. According to the NLRB, a reasonable person would read the rule as precluding them from speaking on the company’s behalf, leaving that instead for the CEO in all company policies or events affecting the company.

Lamb noted the policy’s first sentence, which said employees couldn’t give any information to reporters who approach them, was a “very broad brush.”

“If they had stopped there, there might have been a problem,” Lamb said. The board was willing to let the more specific second sentence qualify the first.

NLRB administrative judges under the Trump administration have ruled against employers on media contact policies in cases where they found the policies overly broad. In Maine Coast Regional Health Facilities, the employer fired an employee for writing a letter the editor of a local newspaper in which she complained about work conditions. The hospital system fired her under its media contact policy, which said “[n]o [employee] may contact or release to news media information” about the organization without communications department or COO’s involvement. In a November 2018 decision that’s under appeal, the ALJ found that policy violated the NLRA.

In an advice memo released in April, the NLRB General Counsel gave another example of a media contact rule it found overly broad. The case concerned Universal Security, which provides security guards at Chicago’s O’Hare International Airport, and the company prohibited employees from “speak[ing] to the media at any time.” The NLRB GC recommended a complaint be filed against Universal Security because the rule was unlawful.

More recently, the GC’s Office made public a 2018 advice memo showing how it uses the Boeing test to judge the lawfulness of workplace rules. In the memo released in August, the office examind CVS Health’s social media rules, among others, finding some unlawful and others not. Lamb noted that some rules found lawful, as with LA Specialty Produce, had a “broad-brush ‘shall not’” sentence that was the

The federal government’s labor watchdog is using a more employer-friendly test to determine whether employers unlawfully bar their workers from talking to the press.

The National Labor Relations Board on Oct. 10 ruled 3-1 that an employer’s media contact restriction, which limits the situations in which its employees can give comments to the press, isn’t unlawful. The board weighed whether LA Specialty Produce, a wholesale foods distributor in California, had a media contact rule on its books that impeded its employees’ rights to discuss their work conditions and other subjects protected by the National Labor Relations Act.

Using the new “balancing test” from its Boeing decision to judge the lawfulness of workplace rules, the board majority found that a reasonable employee wouldn’t construe LA Specialty Produce’s rule as interfering with their rights under Section 7 of the NLRA.

The LA Specialty Produce decision shows how employers have some wiggle room in drafting a lawful media gag rule in the eyes of the NLRB. But a rule that broadly prohibits employees from talking to the press could still run afoul of the NLRA, as the board has previously determined.

Also in that decision, the board majority held that the employer’s confidentiality rule, which forbade employees from disclosing the company’s proprietary client and vendor lists, didn’t violate the NLRA.

Many companies maintain media contact rules to help manage their public image and keep confidential information from reaching the press. It used to be mostly larger companies that kept such rules, but “it’s becoming more and more common,” said Christine Lamb, an attorney who is a partner at Fortis Law Partners in Denver.

Like the rules outlining what employees can or cannot say on social media, media contact rules in employee handbooks have been under NLRB scrutiny. The NLRB, however, now uses its more forgiving Boeing test that asks whether a rule could be “reasonably interpreted” by an employee to hinder their rights to concerted activity under the NLRA.

LA Specialty Produce’s media contact rule said that “[e]mployees approached for interview and/or comments by the news media, cannot provide them with any information.”

According to the board majority, however, a reasonable employee would read the next sentence to limit the scope of the gag rule: “Our President, Michael Glick, is the only person authorized and designated to comment on Company policies or any event that may affect our organization.”

The majority determined the media contact rule didn’t gag employees from speaking out about their work conditions. According to the NLRB, a reasonable person would read the rule as precluding them from speaking on the company’s behalf, leaving that instead for the CEO in all company policies or events affecting the company.

Lamb noted the policy’s first sentence, which said employees couldn’t give any information to reporters who approach them, was a “very broad brush.”

“If they had stopped there, there might have been a problem,” Lamb said. The board was willing to let the more specific second sentence qualify the first.

NLRB administrative judges under the Trump administration have ruled against employers on media contact policies in cases where they found the policies overly broad. In Maine Coast Regional Health Facilities, the employer fired an employee for writing a letter the editor of a local newspaper in which she complained about work conditions. The hospital system fired her under its media contact policy, which said “[n]o [employee] may contact or release to news media information” about the organization without communications department or COO’s involvement. In a November 2018 decision that’s under appeal, the ALJ found that policy violated the NLRA.

In an advice memo released in April, the NLRB General Counsel gave another example of a media contact rule it found overly broad. The case concerned Universal Security, which provides security guards at Chicago’s O’Hare International Airport, and the company prohibited employees from “speak[ing] to the media at any time.” The NLRB GC recommended a complaint be filed against Universal Security because the rule was unlawful.

More recently, the GC’s Office made public a 2018 advice memo showing how it uses the Boeing test to judge the lawfulness of workplace rules. In the memo released in August, the office examined CVS Health’s social media rules, among others, finding some unlawful and others not. Lamb noted that some rules found lawful, as with LA Specialty Produce, had a “broad-brush ‘shall not’” sentence that was then qualified by a more specific restriction.

Lamb said some companies will try to slap a savings clause on their social media or media contact policies. These clauses often say something resembling “nothing in this policy is meant to interfere with an employee’s protected rights” under various statutes. But that doesn’t “magically” make a policy lawful, Lamb said. The NLRB in the CVS case, she noted, said CVS’ savings clause didn’t cure a social media policy that was unlawful on its face.

The NLRB’s Boeing test may be friendlier to employers than what it used under the Obama administration, but it can be a somewhat unpredictable standard when they’re drafting rules, Lamb said.

“I think anytime there’s a balancing test, it’s really tough to determine with a specific policy how that balance would tilt in the end,” she said. “It’s hard to know — is it one percent on this side of the scale, or one percent on that side?” She added that the CVS advice memo is an especially helpful read for employers considering it shows how the NLRB applies the test to a variety of rules. •

— Doug Chartier

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