Labor and Employment
Silence is Golden – NLRB Affirms Employer Restrictions on Employee Discussions with Media
October 11, 2019
Continuing its recent conservative approach, the National Labor Relations Board (NLRB or Board) ruled Thursday that an employer’s policies restricting employees from answering media inquiries and discussing customer information with third parties were lawful. The decision in LA Specialty Produce Co. and Teamsters Local 70 joined similar Board decisions reached in the past two years by relying on the standard adopted by the Board in December of 2017 in Boeing Co. Under the Boeing Co. standard, written employer policies are evaluated based on the nature and extent of their potential impact on employee rights guaranteed by the National Labor Relations Act (NLRA) counterbalanced against an employer’s legitimate business justifications. Using these considerations, policies are grouped into one of three categories designed to help guide employers and future Board determinations.
In LA Specialty Produce Co., the challenged employer policies prohibited employees from answering media inquiries and from providing the employer’s client/vendor lists to third parties. A majority of the Board ruled that the policies furthered legitimate employer interests without interfering with protected rights. The majority reasoned that the client/vendor list rule did not prohibit employees from discussing concerns with union representatives, despite claims otherwise, and that restrictions on media inquiries did not interfere with employees’ rights to talk with media sources about workplace concerns because it only barred workers from speaking for the company when approached by the media. Employees are still free to take union and workplace concerns to the press under the policy.
While the decision helps clarify the rights of employers to protect their confidential customer and vendor information and to prevent opportunities for misstatements on behalf of the employer to the media, employers should be cognizant of the limitations on the ruling. The ruling does not permit employers to restrict all third-party communications or media contacts. Earlier decisions of the Board have ruled that many such restrictions are barred by the NLRA. Additionally, the decision in LA Specialty Produce Co. is split along partisan lines, with all three votes favoring the decision coming from Republican appointees. It also relies on a relatively new, and heavily-contested, legal standard that had overruled a prior long-standing rule set forth in Lutheran Heritage Village-Livonia. Consequently, employers should continue to adopt policies that are closely-tailored to legitimate overriding business concerns, and should remain attentive to the ever-evolving political winds and changes in Board composition when updating and reviewing employment policies.
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