NLRB Strikes Down Employer Rule Prohibiting External Communications

Kollman & Saucier
Kollman & Saucier

On January 25, 2013, the NLRB continued its assault on employer policies limiting employee communications. In its latest salvo, the Board struck down rules restricting communications with media representatives and law enforcement officials, as well as a prohibition on making external disclosures about the company, its customers, and its employees.  DirecTV U.S. DirecTV Holdings LLC, 359 NLRB No. 54 (2013).

At issue in the case were four DirecTV policies.  One, entitled “”Communications and Representing DirecTV,” prohibited employees from contacting the media without prior approval from the company’s public relations department.  The Board found this overly broad because it would discourage employees from contacting the media in a labor dispute or publicizing concerns about wages, hours, and other terms and conditions of employment.

The second policy required employees to direct any inquiries from “law enforcement personnel” to DirecTV’s security department.  Because “law enforcement personnel” could be read to include NLRB investigators, the policy was too broad since it would interfere with employee rights to file unfair labor practice charges.

The third policy prohibited employees from discussing details about their jobs with “anyone outside the company” and forbade them from disclosing information about “customers or DirecTV employees.”  Once again, the rule failed to pass muster with the Board because it could be read to prohibit communications with union officials and NLRB agents.

The fourth rule told employees that they may not “blog, enter chat rooms, post messages on public websites or otherwise disclose information that is not already in the public record.”  Not surprisingly, the Board found the rule unlawful, holding that employees could read it to mean that they could not discuss terms and conditions of employment on social media sites.

So what it the take away?  The answer is: (1) make sure your communications policy is narrowly tailored, even in a non-union workplace, and allows employees to discuss non-proprietary information about working conditions on social media sites and elsewhere, and (2) hope that the recent Noel Canning decision from the United States Court of Appeals for the District of Columbia Circuit invalidating the Board’s recess appointments is upheld.


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