Does your Company have a policy prohibiting employees from speaking to media representatives about the Company? If so, your policy might be unlawful under the National Labor Relations Act (NLRA). As a short review, the NLRA protects the rights of employees to engage in concerted activities for their mutual aid or protection with respect to their terms and conditions of employment. In simple form, anything an employer does to interfere or prevent employees from joining together to address workplace concerns can run afoul of the NLRA.
In a recent decision, an Administrative Law Judge (ALJ) found a Company media policy overbroad and prevented employees from engaging in protected activities under the NLRA. The particular policy simply stated that if contacted by the media that "no information exchange is permitted" unless done so by the specifically appointed Company spokesperson. While the Company tried to assert the policy did not expressly prohibit employees from engaging in NLRA protected activity, the ALJ noted the terms of the policy were "ill defined" and "the guideline, as written, could also encompass and prohibit communications about wages, labor disputes, and other terms and conditions of employment." The ALJ followed a prior case from 2008 in which a similar corporate media policy was struck down as unlawful. What is important to note is that in both cases the employer argued a significant need to limit media communications to the centralized corporate spokesperson for official comments to the media for a range of reasons. These arguments failed and are likely to continue to fail in the immediate future.
The policies held unlawful under the NLRA share the same features. These include: 1) a blanket ban on comments to the media by employees; 2) directing all comments through a centralized corporate spokesperson; and 3) no exception to allow employees to comment on materials protected under the NLRA. Employers are faced with tough choices with respect to corporate media policies. The policy can be amended to comply with the NLRA; however, this is likely to defeat the objective of ensuring only a prepared and competent employee speaks on behalf of the Company. If an employer chooses to revise the policy, it probably makes sense to simply add a disclaimer allowing any employee communication with the media if the subject material is protected by the NLRA. Such a disclaimer will provide employers with a defense should some employee or entity allege a corporate media policy violates the NLRA. Keep in mind though a disclaimer may not be enough to avoid scrutiny. A disclaimer can be confusing and may not be enough to rescue a flawed policy. Another step further towards creating a compliant media policy is to draft an exception allowing employees to discuss their own personal concerns with the media and restrict only discussions with the media that implicate items beyond an employee's terms and conditions of employment. This approach should be enough to avoid violations of the NLRA, but may make the policy useless in terms of controlling employee comments to the media. A final approach is to leave the policy intact with is problematic requirements and carefully manage any employee disciplinary matter that may arise following a violation of the policy to ensure no activities protected under the NLRA are invoked.
None of the approaches above are perfect. In order to have an effective media policy to meet the goals of the Company it almost must violate the NLRA on its face. Any modifications to prevent a violation of the NLRA leaves large gaps in the policy and/or creates hard to understand boundaries. While the enforcement monitoring won't allow the employer to escape a finding that a policy violates the NLRA, it will at least allow the employer to mitigate any legal risk (or monetary damages) associated with the enforcement of a corporate media policy in the case of an employee engaging in truly protected activity under the NLRA.