In a recent decision, a NLRB administrative law judge (the “ALJ”) found three policies in the Dish Network’s nationally-distributed handbook unlawful: a social media policy, a policy that restricts contact with the media, and a policy that restricts contact with government agencies. While the challenge to the social media policy is nothing new, the decision serves as a reminder for union and non-union employers alike that no policy is safe from scrutiny by the National Labor Relations Board (the “Board” or the “NLRB”).
Following recent Board guidance, the judge initially found the social media policy unlawful for two reasons: first, it banned "disparaging or defamatory comments about DISH Network," which the ALJ concluded could interfere with employee rights to engage in protected concerted activity, such as making collective complaints about terms and conditions of employment; and second, it banned employees from communicating electronically during "Company time," which the judge concluded was unlawful because "Company time" did not clearly exclude breaks and other non-working hours.
The ALJ then critiqued the other two policies with similar scrutiny.
The Contact with the Media Policy read:
The Corporate Communications Department is responsible for any disclosure of information, to the media regarding DISH Network . . . . Unless you receive prior authorization . . . you must direct inquiries to the Corporate Communications Department. Similarly, you have the obligation to obtain the written authorization of the Corporate Communications Department before engaging in public communications regarding DISH Network or its business activities. . . .
The judge decided that the policy was unlawful because it required employees to obtain authorization before speaking about the employer to the media or at public meetings, which, the judge found, “unduly interfere[s]” with workers’ rights to seek outside assistance to improve workplace conditions and terms of employment.
The Contact with Government Agencies Policy stated:
- Phone calls or letters from government agencies may occasionally be received . . . . The General Counsel must be notified . . . of any communication . . . concerning the Company . . . .
- If written correspondence is received, notify your manager immediately and forward the correspondence to the General Counsel . . . . The correspondence should not be responded to unless directed [to do so] . . . .
- If phone contact is made . . . [p]rovide the individual with the General Counsel’s name and number . . . if requested, but do not engage in any further discussion . . . .
- Immediately . . . notify a supervisor . . . .
The ALJ opined that this policy also was unlawful because workers could construe it as a ban on communications between NLRB agents and workers – thereby interfering with union activity.
Employers throughout the country have workplace policies similar to the Contact with the Media and Government Agencies policies at issue in this case. In light of this new ruling, and recent Board trends, employers conducting periodic review of their employee handbooks and other workplace policies should carefully review policies that could be misconstrued as restrictions upon employee rights under the National Labor Relations Act, and consider tailoring them accordingly.
For answers to questions regarding employers and their workplace policies, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.
James J. La Rocca is an Associate in the Gibbons Employment & Labor Law Department.