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DTCI: Beware of overly broad media policies

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gesslingBy Joshua B. Gessling

The National Labor Relations Board continues to be very active in evaluating employee handbook provisions that may affect the rights of union and nonunion employees to engage in protected, concerted activity under Section 7 of the National Labor Relations Act.

A three-member panel recently issued its decision in DirecTV U.S. DirecTV Holdings LLC and struck down several of the company’s employee handbook provisions. The NLRB declared the employer’s media policy, which prohibited employees from contacting the media, to be overly broad and unlawful because it could be reasonably construed by employees to limit the Section 7 right to discuss labor disputes with media. Consistent with several other recent decisions, the NLRB found that the employer’s policy made no attempt to distinguish between protected and unprotected activity. Furthermore, the employer’s policy required that employees obtain authorization from the employer before making comments regarding the employer to media. The board found this requirement to be unlawful, holding that the employer may not require an employee to obtain permission to engage in protected, concerted off-duty activity.

The NLRB also struck down the employer’s handbook provision on the employer’s confidentiality rules, which prohibited employees from discussing details about the job, company business or projects with anyone outside the company. The board found this provision to be unlawful because employees could reasonably understand the rule to prohibit employees from discussing wages and other terms and conditions of employment. The board also believed the employer’s rule could be reasonably understood to prevent employees from communicating with union representatives, NLRB agents or other governmental agencies regarding workplace issues, which provided an additional basis for its determination.

Employers should evaluate internal policies and employee handbooks to ensure that all company rules are consistent with legal developments. For additional information on how DirecTV U.S. DirecTV Holdings LLC affects your media, confidentiality and other employee handbook provisions, contact this author or a member of the Labor and Employment Group at Kahn Dees Donovan & Kahn LLP.•

Mr. Gessling is an associate in the Evansville office of Kahn Dees Donovan & Kahn LLP. The opinions expressed in this article are those of the author.

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  1. A sad end to a prolific gadfly. Indiana has suffered a great loss in the journalistic realm.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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