As we previously reported, the National Labor Relations Board (“NLRB”) continues to scrutinize whether the employee handbooks of non-union employers can reasonably be construed to violate employee rights under federal labor law.
Most recently, the NLRB ruled in DirectTV, 359 NLRB No. 54 (Jan. 25, 2013) that policies from DirectTV unlawfully infringed on employee rights to engage in concerted activity protected by the National Labor Relations Act (“NLRA”).
Limits on Third-Party Communications Must Not Be Overbroad
Specifically, the NLRB ruled that the following directives in DirectTV’s employee handbook violated the NLRA:
- “Do not contact the media.”
- “Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.”
- “If law enforcement wants to interview or obtain information regarding a DirectTV employee . . . the employee should contact the security department . . . .”
The Labor Board considered the first restriction overbroad because the NLRA would protect employees’ communications with the media about a labor dispute. The Board said the second rule was unlawful because “any rule that requires the employees to secure permission from their employer” to engage in protected communications is unlawful.
The NLRB found the last directive unlawful because a reasonable employee could interpret the ban on communicating with “law enforcement” to prohibit employee cooperation with NLRB investigations, which is protected by the NLRA. The Board seemed to suggest that a more limited rule, or at least one that exempted employee communication with Board agents, may be lawful.
Imprecise Definitions Are Fatal to Confidentiality Policies
The Labor Board also found two of DirectTV’s policies forbidding the disclosure of “confidential information” and “company information” unlawful because they limited employees’ ability to share “employee records” with other employees as well as “third parties such as union representatives, Board agents, or other governmental agencies concerned with workplace matters.” The NLRB concluded that a reasonable employee would construe the provision to prohibit sharing information on wages and other terms and conditions of employment.