Approved! NLRB Okays Workplace Policies on Media Contact and Confidentiality
Last Thursday, the
NLRB approved a pair of workplace rules in
a decision related to the protection of proprietary client and vendor lists and
limits on who may speak to the media on the employer’s behalf. The Board
grounded its decision in a common sense reading of the text of the workplace
rules, finding that neither rule could reasonably be read to limit any
protected activity, despite some minor points of textual ambiguity.
The takeaway of the decision for
employers is that, for so long as the current administration remains in place, they
should feel more comfortable in writing workplace policies that protect their legitimate
business interests. Specifically, companies are permitted to control their own
messaging to the media by instituting workplace rules that define who will be
their authorized media spokesperson(s). Employers are also permitted to conceal
and protect their proprietary information, and they can implement workplace
rules that bar employees from using or disclosing that proprietary information
without authorization. The Board held that as long as a common sense reading of
a workplace rule suggests that the rule is tailored to memorialize and further
one of those goals, it will likely not find that the rule unlawfully infringes
employees’ labor rights.
However, it is important to
realize that this decision does not guarantee protection for carelessly drafted
workplace rules, regardless of any good intentions behind the policies. Overbroad
media or confidentiality rules may still be struck down as unfair labor
practices in cases where they unqualifiedly ban employees from speaking with
media or labor organizations on workplace matters. In drafting your own
workplace policies, try to read the policies from the perspective of one of
your employees. Ask yourself, “What would this rule prohibit me from doing?” If
the prohibition extends past the business interest you hope to protect and
limits what the employee otherwise has a right to do (e.g. speak to the media about
his or her wages, hours, or working conditions in their personal capacity), it
may be in your interest to tighten up your rule’s language. In the arena of
labor restrictions, overbreadth invites objection.
Finally, for workplace policies that cover
business interests apart from those discussed above, it is important to
remember that workers’ rights and business considerations may in some cases overlap.
It is not always clear where business interests end and worker protections
begin, especially when you take into account the Board’s shifting stance on
labor policy between administrations. Therefore, when drafting other workplace
rules for your employees, it may be worthwhile to check the Board’s current and
past stances on relevant labor-related policies.
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