Say What?! Employee Protected Speech Under the NLRA Knows Few Bounds

Common wisdom states that private-sector employees have no free speech rights – but this perception is rooted only in First Amendment law. The truer statement is that employees’ First Amendment free speech rights may be limited by the employer, but protected speech rights under the National Labor Relations Act (NLRA) may not be restricted.

The NLRA is one of those laws perceived to be outside the orbit of normal, private-sector employment law – and thus outside the general concern of most HR professionals. For most, the NLRA has been seen as something affecting “union shops” with traditionally unionized labor forces (teachers, service employees, factory workers, etc.).  Further, it’s understood to be a concern for those in “union states” like New York – but not places like Texas, where 95% of the labor force is non-union.

But HR leaders should definitely consider the NLRA when formulating workplace policies and best practices, especially when taking steps to limit employee speech.  This is true, whether the limitation applies strictly to spoken word, or more commonly, extends beyond to Facebook, Twitter, and other social media platforms.

Protected Speech / Concerted Activities

Section 7 of the NLRA grants the following protected right to all private-sector, non-supervisory employees:

“…to engage in… concerted activities for the purpose of collective bargaining or other mutual aid and protection.”

Employers may not “interfere with, restrain or coerce employees in the exercise of” the employee’s section 7 protected rights. The breadth of section 7 is truly astounding, as “mutual aid and protection” is generally read to include any employee-interested motivation, such as concerns on compensation, hours, working conditions, supervisors, and workplace policies.

Effective limitation on employee speech in the face of the NLRA can therefore be especially challenging, and clearly employers need not call out the Pinkertons to run afoul of the NLRA. HR leaders should therefore conduct a risk analysis of employee conduct policies (including social media policies) to determine the following:

• Does the policy affect non-supervisory personnel who have section 7 NLRA protections? If so, we must consider the NLRA.
• Could the policy realistically prevent an employee from speaking out in a concerted activity (with respect to compensation, workplace conditions, etc.)? If so, we might end up in violation of the NLRA.
• What is the company’s risk/reward in deciding to keep, modify, or roll back the policy? This should be a joint decision between HR, business, and legal partners.

Of course, every law has its exceptions, and employers are not left totally at the mercy of their employees when it comes to the NLRA.

Confidential information, for instance, can still be protected – as long as it is truly confidential, i.e., the employer has a legitimate economic interest in protecting the information from disclosure to its competitors.  Simply labeling a topic (for instance, wages) as verboten due to confidentiality concerns, without a legitimate business reason for doing so, is not sufficient to shield the employer from NLRA liability.

Communications that are disloyal or disparaging to the employer may likewise be examples of unprotected speech; however, reliance on these exceptions should be tempered. As seen below, the NLRB (the enforcement body for the NLRA) typically resolves “coin-flip” situations, and communications which mix protected and arguably unprotected speech, in favor of the employee.

Can employers restrict employees from talking about work on social media? Tread softly.

The poet W.B. Yeats wrote:

“… I have spread my dreams under your feet;
Tread softly because you tread on my dreams.”

“Tread softly” is a good mantra when it comes to restricting employee speech on the internet.  Sweeping policies preventing any speech, anywhere, anytime relating to the company are sure to backfire at some point.

Some examples:

1. Company had a social media policy restricting employee speech that would “damage the Company, [or] defame any individual or damage any person’s reputation.” The policy was essentially an anti-defamation policy, however, I’m sure you’re beginning to see where the NLRB would find problems with it.

Specifically, the NLRB stated that employees would reasonably expect that their rights to engage in a concerted activity – put another way, employees’ ability to talk badly about the company in any way – would be infringed.

In essence, the NLRB ruled that a total gag on criticism of a company is a de facto violation of the NLRA.  Speech-limiting policies must therefore be tailored to avoid restricting protected speech, while still protecting the legitimate business interests of the company.

2.  Employer had a policy that employees be courteous and not use any language that “injures the image or reputation” of the company. A salesperson posted comments on Facebook criticizing his company’s workplace sales events, specifically the low quality of the food at the sales events.  He was fired for this post, as well as other reasons.

While the NLRB found the employee was terminated for these other valid reasons, its hearing officer found the employee’s Facebook post about the food quality at sales events was protected speech, because success of the sales events ultimately affected the salesperson’s commissions/compensation.  Thus, the courtesy policy violated the NLRA.

This case is a good example of a company not treading lightly, enacting a no-talk policy that potentially encompassed a whole universe of protected speech.

3.  In a case currently on appeal in the Second Circuit, a service employee wrote the following inflammatory message on Facebook, about his supervisor:

Bob is such a NASTY M***** F***** don’t know how to talk to people!!!!!! F*** his mother and his entire f****** family!!!!  What a LOSER!!!!

After this offensive tirade, the employee closed with an emphatic: “Vote YES for the UNION!!!!!!!” The employee was nonetheless terminated.

Was the first section of the Facebook post disloyal and disparaging, and therefore possibly unprotected? Yes.  However, the NLRB went to great lengths to discuss how this profane first section still criticized the supervisor, and that profanity was commonplace in the workplace, so the employee’s Facebook post did not lose its NLRA-protected status.  The fact that the employee tacked on a pro-union statement at the end of his speech was simply the nail in the employer’s coffin.

(Note, also, that a Facebook “like” of a post containing protected speech may enjoy the same protections as the original post).

Time to Take Stock of Existing Policies

These recent NLRB rulings show that (1) the NLRA is a real threat to companies with policies that limit employee speech, including social media policies, and (2) the NLRB is quick to intercede in favor of employee rights.

For HR professionals, there is no better time than now to take stock of these company policies. Specifically, employee handbooks, employment agreements, and other policies and procedures should be reviewed, in consultation with business and legal partners, to determine if such policies are NLRA-compliant.

Demetri Economou is an associate in Kane Russell’s Labor & Employment Practice Group, based in Houston. Should you have any questions about the NLRA, social media policies, or would like to talk about existing employment policies, please contact Demetri at deconomou@krcl.com.

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