United States: NLRB Gets Busy – Part 2

Last Updated: February 13 2013
Article by Charles S. Einsiedler, Jr. and Michelle Y. Bush

NLRB Incursion into Non-Unionized Workplace

In January, we told you about recent activity by the National Labor Relations Board that overturned or departed from settled precedent.  As promised, in Part 2 of this Alert series we summarize recent decisions where the Board focused on the non-unionized employer. 

Ironically, on the same day the D.C. Circuit found all actions of the Board to be void because of the recess appointments of three of its members, the Board issued its most far-ranging decision, striking down four mainstream policies issued by DirecTV.  As a result of this decision, every employer needs to review carefully all of its policies that restrict dissemination of Company information or which in any way restrict employee communications.

Board Invalidates Work Rules on Non-Disclosure, Non-Disparagement, and Restrictions on Media Contact

As we have reported in several alerts over the past year (click here and here), the Board has made no secret about its view that employers may violate the National Labor Relations Act by disciplining employees for comments made on social media or by placing limits on what employees can say on social media.  Social media policies are not the only work rules that the Board is scrutinizing. 

In late January, the Board found that four of DirecTV's employment policies violated the National Labor Relations Act.  The policies were garden variety versions of what many employers have in the areas of confidentiality and communications.  The Board did not find that the Company had enforced improperly any of the policies in question.  Nevertheless, the Board ordered that the policies be immediately rescinded and that DirecTV post a notice that it has engaged in unfair labor practices at all of its facilities in which the policies were in place. 

One of those policies directed employees not to contact the media, to direct all media inquiries to the communications department, and not to comment to the media unless authorized.  The Board found the rule unlawful because employees would reasonably interpret the "unequivocal" and "broad" language in this rule as prohibiting protected communication to the media about labor disputes, even though the policy said nothing about labor disputes.

The Board also found unlawful a work rule requiring employees to contact the security department if "law enforcement" wants to interview or obtain any information regarding an employee.  The Board reasoned that the rule was ambiguous because employees would reasonably believe that Board investigators were "law enforcement" and would thus believe they were prevented from speaking to them, even though there was no evidence anything like this had actually happened. 

DirecTV also had a "confidentiality rule" prohibiting employees from discussing "details about your job, company business or work projects" and directing that "company information" including "employee records" must be held confidential.   The Board found that employees would understand this rule to restrict discussion of wages and working conditions and was, thus, unlawful.  Finally, the Board found unlawful a policy restricting employees from posting online any "company information" that is not already a public record because "company information" was defined in the "confidentiality rule" to include employee records.   

The DirecTV decision comes on the heels of a similar decision in early January by an administrative law judge (ALJ) involving Quicken Loans.  The Quicken Loans case has broad ranging implications relating to enforcement of non-disparagement, confidentiality, and no-raiding clauses.  In that case, Quicken Loans had all its mortgage bankers sign confidentiality agreements concerning disclosure of personnel information.  The agreement also prohibited former employees from soliciting or contacting Quicken Loans employees and from competing with Quicken Loans.  The charging party (Garza) left Quicken Loans and began to raid Quicken's employees and compete, both in violation of her employment agreement.  The ALJ ordered Quicken Loans to "cease and desist" from enforcing the policy and further ordered the Company to rescind its policy and agree not to enforce it.  The ALJ reasoned that the policy was overly broad because it prohibited lawful discussions of wage and working conditions; further by limiting "solicitation" it prohibited lawful union organizing activities.    

These decisions are an illustration of the current Board's emphasis on non-unionized employers as well as the apparent ease with which it interprets work rules to be "ambiguous" or impermissibly "broad" even if the policy was not intended to prohibit "protected activity".  Employers placing otherwise reasonable limits on employee communication must make clear that the limits do not apply to protected activity (such as communication about wages or labor disputes).  Unfortunately, we also know from the social medial cases that employers cannot simply include a general disclaimer in their policies but must illustrate or clearly explain the type of behavior that is allowed under the rule.  Striking the right balance – or at least a balance that the current Board accepts - is difficult and requires a careful analysis of existing policies. 

At-Will Clauses in Employee Handbooks

Many employers have clauses in handbooks stating that employees are "at-will" and that the at-will status cannot be changed by managers or supervisors.  Last year, in a decision that garnered a significant amount of attention, an ALJ found an American Red Cross handbook provision that stated that "the at-will employment relationship cannot be amended, modified or altered in any way" to be unlawful because employees could reasonably construe it to prevent them from attempting to change the at-will status through collective action.

In late 2012, Board Acting General Counsel weighed in the issue of under what circumstances "at-will" clauses violate the National Labor Relations Act.  In two separate opinion letters, the Acting General Counsel opined, somewhat surprisingly, that clauses that limit who has the authority to enter into an agreement for employment for a period of time but do not expressly state that the at-will status can never be changed are lawful.

In one case, the handbook provision stated that only the president of the company had the authority to enter into an agreement for employment for a specified period of time.  In the other case, the handbook provision stated that "no representative of the company has authority to enter into any agreement contrary to the ...employment at will relationship."  The Acting General Counsel found the two provisions to be lawful because neither requires the employees to refrain from seeking to change the at-will status.  Rather, the provisions simply prohibit employer representatives from entering into agreements to change at-will status. 

At some point the Board itself may well weigh in on this issue, and we will find out whether the Acting General Counsel's view or the more doctrinaire ALJ rationale will prevail.  Until then, employers can at least continue to include clauses in employee handbooks limiting who has the authority to change employees' at-will status as long as employers do not represent that the at-will status can never be changed.


Non-unionized employers rarely deal with unions or the Board.  Therefore, it is not surprising that many are often entirely unaware that the Board considers seemingly reasonable personnel policies to be unlawful.  Please review your work rules and policies – especially those dealing with confidential information or employee communications -- and let us know if you have any questions about whether your policies are at risk of being found unlawful.

Please click here to read Part 1 in this series.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.