Hunton Employment & Labor Perspectives

Many workplace policies and employee handbooks contain restrictions on employees speaking to the media.  Through these policies, employers often seek to limit what organizational information is disclosed to third parties, and to exercise at least some control over statements that may be attributed to the company.  Such restrictions, though, may be found to violate employees’ rights under the National Labor Relations Act (“the Act”) due to overbreadth when not drafted carefully.  And, while the National Labor Relations Board in the Trump era has seemed willing to revisit pro-worker rulings, the General Counsel last month released an Advice Memorandum affirming this long-standing precedent.

The Universal Memorandum

In the memo, released on April 15, 2019, the Board advised that in the case of Universal Security, Inc., 13-CA-178494, the employer’s rule prohibiting employees from speaking to the media was unlawful and overbroad.

Universal employees served as unarmed security guards at Chicago’s O’Hare International Airport.  Universal had a policy for its employees at O’Hare that “All USC employees are not permitted to speak to the media at any time.  If media arrives at your post, immediately contact your supervisor…”  Two Universal employees who worked at O’Hare became active in Union meetings in late 2015 and early 2016.  Both employees made statements to the media about Universal’s sick-day and vacation-day policies, healthcare, low wages, emergency response training, and alleged retaliation against employees after complaints about working conditions.  Universal terminated both employees pursuant to their media policy, and alleged that the employees’ comments to the media had included “sensitive security information” (SSI).

Included in the General Counsel’s guidance memo was a recommendation that a complaint be issued against Universal on the ground that it unlawfully maintained an overbroad rule banning employee communications to the media, and violated the Act by terminating the employees pursuant to that overbroad rule.

No Sign of Turning Back

Although the Universal Memorandum was not released until last month, it was issued back in November 2016.  Since then, the Board has shown no signs of backing down on its historic approach to employer policies banning employees from speaking to the media.  For example, in a November 8, 2018 decision, a Board ALJ ruled that a hospital company violated the Act by firing an employee for violating the hospital’s policy against unapproved media contacts after she wrote a letter-to-the-editor that was unflattering to the employer.  Maine Coast Regional Health Facilities, 01-CA-209105.

Key Takeaways for Employers

The Universal Memorandum makes it clear that “[e]mployees have the statutory right to speak publically about their complaints or concerns with their terms and conditions of employment, including to the press, without employer authorization.”  But, all hope is not lost for reasonable workplace policies addressing employees speaking to the press.  Here are some tips for crafting an effective and lawful policy:

• Control your company’s narrative. The Board has made clear that an employers’ policy that “merely regulates who may speak on behalf of the company” is presumptively lawful.
• Hold supervisors to a higher standard. The Act applies only to “employees,” not “supervisors.”  Employers may restrict the ability of supervisors to speak to the media or other third parties without Board scrutiny.
• Define confidential and sensitive information. If you have a policy of prohibiting employees from disclosing confidential or otherwise sensitive information, spell that out in your policy.  Make sure that the definition is tailored and not overly broad so as to include terms and conditions of employment that employees are entitled to speak about under the Act.
• Seek appropriate legal counsel.  It is always a good idea to have handbook provisions reviewed by a lawyer who specializes in labor issues, to ensure maximum protection and avoid potentially costly litigation.  You should also seek counsel before disciplining or terminating an employee for speaking to the media or other third parties.