NLRB: Employees Can Discuss Discipline

The National Labor Relations Board (NLRB) recently released an Advice Memorandum dated August 7, 2018, addressing policies prohibiting employees from publicly disparaging the employer. Specifically, a policy that prohibits employees from “engaging in conduct that could adversely affect [the employer’s] business or reputation,” including “publicly criticizing [the employer], its management, or its employees,” was a violation of the National Labor Relations Act (NLRA), because the impact on employees’ Section 7 rights outweighed the employer’s business justification for the rule. This was a blanket policy that was not narrowly tailored to avoid infringing on employee rights, i.e., “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

There, an employee posted a video to social media of himself, dressed in a work uniform while at a worksite, criticizing the employer and making disparaging and threatening personal comments about a supervisor and other individuals associated with the employer. Although the policy violated the NLRA, the NLRB stated that the employee’s actions were not protected, because the statements made were entirely individual complaints with no indication that the employee was seeking to or acting in concert with other employees. Additionally, the statements were so egregious that other employees would understand that the employee was terminated for legitimate reasons.