Employers Beware: The National Labor Relations Board Cracks Down on Non-Disparagement Policies

Which one of the below employment policies might be problematic for employers?

(A) “Do not speak negatively about your employer.”

(B) “Refrain from any action that would cause damage to your employer’s reputation.”

(C) “Do not comment on any legal matters.”

(D) “Employees are unauthorized to speak to the media and must refer media inquiries to the Media Relations Department.”

The answer? All of the above. If challenged, each of the above policies would likely constitute a violation of the National Labor Relations Act (“NLRA”).

Section 7 of the NLRA guarantees employees the right to engage in “concerted activities” for the purpose of collective bargaining or other mutual aid or protection. Accordingly, Section 7 protects employees’ rights to discuss the terms and conditions of their employment, to criticize or complain about their employer or their conditions of employment, and to enlist the assistance of others in addressing employment matters.

Employers that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” by Section 7 commit an unfair labor practice and could incur civil sanctions. Significantly, an employer could incur liability if it has a policy that would reasonably tend to chill employees’ exercise of their Section 7 rights under Section 8(a) of the NLRA. Therefore, a policy that has never actually been utilized to prohibit Section 7 concerted activity but could be reasonably read as “chilling” such activity could violate the NLRA.

For example, a policy that broadly prohibits employees from “speaking negatively” or from speaking to the media about their employer could chill the exercise of Section 7 rights. “Speaking negatively” could reasonably be interpreted as prohibiting employees from saying, “my employer underpays me,” which would fall under the protection of Section 7.  Employers can control who makes official statements in a representative capacity on behalf of their business, however, employers must be careful to ensure that their policies would not reasonably be read as a blanket ban on their employees’ right to speak to the media or other third parties on their own behalf.

The NLRB General Counsel’s May 2012 Memorandum endorsed the language of a particular social media policy as lawful, but unfortunately, the NLRB has not yet endorsed any particular non-disparagement policy as lawful. Additionally, because the determination of whether a non-disparagement clause is lawful turns on a case by case basis, a blanket savings clause is insufficient to bring an otherwise overbroad policy into compliance. The NLRB General Counsel’s March 2015 Memorandum referenced certain non-disparagement policies as lawful. Those lawful policies have a common thread: they do not reference information which could be interpreted as encompassing Section 7 activity and they narrowly define the scope of what the policy prohibits.

Employers should review their policies to ensure that the policies are not overbroad and do not encompass what could be reasonably interpreted as chilling employees’ Section 7 protected concerted activities.  Additionally, employers should aim to narrowly tailor their policies and omit any overreaching or unnecessary language. When a policy lacks specificity to restrict its application, employees could reasonably interpret that policy as a ban on protected concerted activities, such as discussing wages, hours, and the terms and conditions of employment.

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