Editor’s Note: Frank D. LoMonte is a professor of media law at the University of Florida. The opinions expressed in this commentary are his own.
As the Trump administration has appointed new board members and replaced top staffers at the National Labor Relations Board (NLRB), it has signaled a directional shift in interpreting workers’ rights laws. Uber drivers discovered this when a recent NLRB memo undercut their movement to organize for higher wages and better working conditions.
While this was a setback for union organizers, an equally consequential workers’ rights case, attracting far less notice, is awaiting a ruling by the full five-member NLRB. It involves free-speech rights that, until now, seemed securely protected by the National Labor Relations Act.
For about 85 years, the National Labor Relations Act has protected the rights of private-sector workers to discuss job-related concerns among themselves, and — importantly — with outsiders, including the news media.
Currently, Google and its parent company, Alphabet, are facing accusations of violating the federal workers’ rights law, which has been applied for decades to prevent employers — including President Trump’s former Atlantic City resort hotel — from silencing employee complaints.
Indeed, companies large and small — including the president’s own — have regularly been caught forbidding their employees from giving interviews without supervisory approval, and have been sanctioned by federal regulators for excessively controlling their employees’ speech.
Now, the president’s appointees to the NLRB have a chance to reaffirm — or retreat from — decades’ worth of legal precedent protecting whistleblowers’ rights.
One of those precedents involves a most recognizable employer: the Trump Marina Casino Resort (since rebranded under new owners). In a 2009 ruling, the Atlantic City casino hotel was ordered to rewrite its employee handbook, after unlawfully reprimanding a labor-union representative who distributed a press statement about a workplace dispute. When the case was first heard in 2007, lawyers for the Trump casino argued that the company’s rules merely provided a process for facilitating interviews, rather than restraining employees from speaking. But an NLRB judge found that a policy requiring supervisory approval before speaking inhibits workers from sharing their concerns with the public.
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The principle recognized by the NLRB in the Trump hotel case — that workers must be free to talk with the public so they can effectively organize and advocate to improve working conditions — is under a cloud of uncertainty, thanks to a Trump-appointed majority on the board.
That’s a concern not just for journalists, but for everyone who relies on news coverage of the business world. Without access to candid interviews with rank-and-file workers, reporters can’t effectively convey what’s going on inside corporate America. That leaves the public with superficial coverage, shaded by spin from public-relations pros, or stories heavily reliant on unnamed sources, which can weaken their believability.
It’s bad for worker safety — never more so than now, as harassment victims emboldened by #MeToo come forward to expose wrongdoing by powerful executives — and it’s bad for public accountability of Wall Street and Silicon Valley.
The NLRA, enacted by Congress in 1935 to protect worker safety, has long been interpreted to outlaw rules, handbooks and contracts that interfere with employees’ rights to enlist public support when seeking workplace reforms. That includes discussing their work with journalists. (The NLRA applies only to the private sector, though in the public sector, the First Amendment similarly guarantees employees’ freedom to speak to the media without reprisal.)
At NLRA-covered workplaces — basically any private employer, other than a church, doing more-than-minimal interstate business — it’s an unlawful labor practice to force non-managerial workers to sign away their right to discuss work-related issues with the media without supervisory approval.
When employees are well-informed of their legal rights — and many are not — the law can make a difference. In August 2017, two fired security guards were reinstated to their jobs with a Chicago airport contractor, after a federal judge found they were unlawfully discharged for complaining to the media about the adequacy of their training.
Even though these “gag policies” are unlawful, our research at the Brechner Center for Freedom of Information reveals that they’re remarkably widespread, even at the most sophisticated organizations where lawyers should know better. Just recently, Chicago’s Loyola University was caught enforcing a policy forbidding employees from communicating with journalists — from which administrators backpedaled and updated the media policy after a public outcry. Loyola initially defended setting up its public-relations office as a mandatory gatekeeper between journalists and university employees, saying it would facilitate putting reporters in touch with the proper sources, before quickly revising the policy.
Google and its parent company are facing both an NLRB complaint and a state-court lawsuit brought by ex-employees in California who claim they were subjected to unlawfully broad non-disclosure agreements, a characterization the companies dispute. (A hearing on the NLRB case has been postponed indefinitely, according to the employees’ counsel, perhaps reflecting the current NLRB staff’s inclination toward workplace-speech cases.)
“Employees are free to express their views, raise concerns and connect and have multiple forums to do so,” a Google spokeswoman wrote in an email to CNN. “This case is without merit and we are defending the claim vigorously.”
Whether employers must extend free-speech rights to their employees will depend on the NLRB’s resolution of a complaint against a Maine hospital accused of firing a whistleblower over an unflattering letter to the local newspaper. In November 2018, an NLRB judge ordered the hospital to rescind its restrictive policy forbidding employees from contacting the media without approval. The judge’s decision is on appeal before the full five-member board. In the appeal, the hospital’s lawyers have defended the policy as an effort to “protect and promote the brand” of the health center, and as “a safety net for employees if cornered directly by a reporter asking questions that the employee is not comfortable answering.”
Although the NLRB has told employers for decades that they can’t gag employees from contacting the media, the board is now dominated by Trump administration appointees.
Under Trump, the board has signaled a willingness to revisit the agency’s past positions on employee rights. In December 2017, the board’s chief counsel rescinded a series of pro-worker memos that the agency’s outgoing general counsel had issued in the waning days of the Obama administration, including memos broadly interpreting employees’ rights to speak freely about workplace issues on social media. That portends danger — in the Maine hospital case and beyond.
While the Eastern Maine Healthcare Systems case is about writing to the local newspaper, the principle it stands for — that employees have legally protected free-speech rights that companies can’t force them to surrender — could also influence how pre-employment “nondisclosure agreements” will be viewed in future cases. While narrow “trade secret” contracts undoubtedly are legal, it’s less clear that a wholesale waiver of the right to say anything about the workplace — even, for instance, to blow the whistle on harassment — is enforceable, or will be viewed as an illegal end-run undermining the NLRA.
Whether the Trump-appointed NLRB will adhere to longstanding precedent, or backpedal from it, will influence the safety of whistleblowers and the ability of journalists to effectively tell the behind-the-scenes stories of what businesses are up to.