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.