Employee media gag rules may be on firmer ground now

While employer policies restricting workers' communication with the press have run afoul of federal protections in the past, attorneys say that the political pendulum swing of the National Labor Relations Board under President Donald J. Trump could put such rules on firmer ground.

In the past, the board struck down some similar policies as violations of Section 7 of the National Labor Relations Act when they are used as cause to fire an employee who has raised issues with the workplace. Section 7 protects "concerted activity," or attempts by workers to organize to improve work conditions.

In past years, the board has interpreted those protections as reaching beyond just attempts to unionize. The safeguards have also broadly applied to speech by workers to improve conditions.

"Most people think of the NLRA as related to union and management controversy, but it's much more than that. It's about the protection of workers and employment conditions beyond just those relations," said William B. Gould IV, professor of law emeritus at Stanford Law School.

The current board "is going to be much more deferential to employer work rules and policies, which other boards thought might intimidate the expression of free speech and workers exercising their protections," he said

"I think this is definitely an area where we saw a lot of expansion during the Obama administration, where they were using the notion of protected activity to go after employer practices that were pretty broad," said Michele H. Gehrke of Reed Smith LLP.

One of those practices was general embargoes on rank and file workers speaking to the press or disseminating information about their employers. Until last year, another was the use of waivers to disrupt class actions.

In past years, the board interpreted the use of such waivers as a violation of Section 7's protections for concerted activity. That ended with the U.S. Supreme Court's upholding of waivers in Epic Systems Corp. v. Lewis, 2018 DJDAR 4705 (May 21, 2018).

A white paper released by the Brechner Center for Freedom of Information at the University of Florida said that while the board has repeatedly struck down employee gag policies, signals from the new guard under Trump portend change.

"In a December 2017 ruling involving the Boeing aircraft company, the board retreated from its longstanding position that a workplace rule will be struck down, even if it does not overtly mention NLRA protected activity, if a reasonable worker would understand it to constrain legally protected rights," the paper says.

"The board did not directly address confidentiality policies or media gag policies, but the takeaway from the ruling is that workers will find it harder to prove that employer rules unlawfully inhibit their right to organize," it added.

Both Gould and Eli Naduris-Weissman of Rothner Segall & Greenstone, who represents unions, noted the deference signaled by the Boeing case as well.

Some speech has always fallen outside the act's protection, Gehrke and Gould said, such as obscenities or personal attacks against superiors. Gehrke said that for now employees can also safely be prohibited from speaking on behalf of the company. Those unprotected by the act, like managers, can also be restricted. Workers must also remember the law only protects them collectively.

"The activity must be concerted to be protected. So if one lone wolf complains publicly about working conditions, its not necessarily protected by the NLRA," Naduris-Weissman said.

The murky standard for unprotected speech, and the one where the board is most likely to show a business-friendly shift, is "disloyalty," according to Gould.

Gould said that in the past, speech was generally protected if it pertained to a specific issue with working conditions. Specifically, he indicated that a 2017 8th U.S. Circuit Court of Appeals en banc decision shows the path the new board might take.

In MikLin Enterprises, Inc. v. NLRB, the circuit court took a different approach to the definition of "disloyalty," upholding the firing of two employees who were dismissed after campaigning publicly with posters demanding a change in sick leave policy.

In the underlying case, the employees filed charges against MikLin with the board. An administrative law judge ruled that Section 7 protected the posters, because they pointed directly to the sick policy at issue and were not maliciously motivated.

An 8th Circuit panel upheld the judge's ruling, but an en banc panel reversed. In the final opinion, the author expressed the same position he did as the dissenter in the previous decision: that the disloyalty standard rests not on the purpose of the communication, but whether or not it is damaging.

"In that case, the Court of Appeals really seemed to suggest that where employee statements were intended to harm the company's business made it unprotected," Gould said.

That, he contended, flies in the face of the National Labor Relations Act's purpose, which is to give workers tools to change their employment conditions. Chief among those tools is economic pressure, be it strikes, leaflets, or press commentary.

"Any advertisement of bad working conditions is designed to put pressure on the employer, and the only pressure for the employer is having to change in the face of causable harm to the business from the public," he said.