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Recent DirecTV Decision Highlights the NLRB's Scrutiny of Employer Confidentiality Policies

Demonstrating the NLRB’s increased focus on limiting employer confidentiality rules, a three member panel of the NLRB recently ruled in DirecTV U.S. DirecTV Holdings LLC, 359 NLRB No. 4 (January 25, 2013) that four work rules maintained by DirecTV were unlawful restrictions on employees’ Section 7 rights and that the employer did not repudiate the rules.    

Specifically, the employer’s rules focus on four categories: contact with the media, communications with law enforcement, confidentiality of job and customer information, and disclosure of non-public information – all of which were found unlawful.  

The Board reasoned that an intranet policy instructing employees to not contact the media or comment to media about the company unless pre-authorized by Public Relations was unlawful because it “requires permission from an employer as a precondition to engaging in protected, concerted activity on the employee’s free time and in non-work areas . . .” Moreover, a handbook provision restricting communications with law enforcement agencies violated the NLRA for several reasons, including due to concern that such an unlawfully broad provision could affect employee contact with law enforcement officials about wages, hours, and working conditions.

In addition, a handbook provision regarding confidentiality instructed employees to “never discuss details about your job, company business or work projects with anyone outside of the company and “never give out information about customers or DirecTV employees.”  “Employee records” was included as a category of “company information” under the rule.  The Board found this rule would reasonably be understood by employees to restrict discussion about terms and conditions of employment and was therefore unlawful.

Lastly, the NLRB found the statement in a corporate policy restricting employees from blogging, posting messages or otherwise disclosing non-public company information was unlawful, focusing on the broad scope of the policy.  The Board reasoned that because employees were instructed to read the intranet policies and its handbook as one, employees who read the two policies would understand the provision to prohibit disclosure of “employee records,” to include information concerning coworkers’ wages, discipline and performance ratings.  At minimum, the Board reasoned, the scope of “company information” policy on the intranet was ambiguous in light of the handbook, and employees should not have to decide at their own peril what information is not lawfully prohibited. 

The employer’s attempts to clarify the above-mentioned rules were unavailing to the NLRB, which found that the employer’s efforts did not amount to repudiation of its unlawful conduct. In order for a repudiation to serve as a defense to an unfair labor practice finding, it must be timely, unambiguous, specific in nature to the coercive conduct, and untainted by other unlawful conduct.  The employer’s attempt to repudiate in this case was found to be untimely.  Moreover, the board found the employer did not effectively repudiate because it did not admit its wrongdoing.

The full decision is available here.   

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