Instruct Your Employees Not To Blog About Work And You Violate The NLRA
As employers scramble to impose some control over their employees’ blogging about work, a recent decision by the federal appellate court in D.C. signals caution. In Cintas Corp. v. National Labor Relations Board, the court ruled that Cintas interfered with its employees’ rights under the National Labor Relations Act (NLRA) to discuss the terms and conditions of employment by publishing a policy that required employees to “protect the confidentiality of any information concerning” the company or its employees. The policy did not explicitly prohibit employees from discussing the terms and conditions of employment. There was no evidence that any employee understood the policy to impose such a prohibition or that Cintas enforced the policy in that way. None of that mattered, the court explained, because an employee “would reasonably construe the language” of the policy to forbid discussions of their pay, benefits, and working conditions.
The Cintas decision dealt with a confidentiality policy, but the ruling applies with equal force to an employer’s restrictions on employee blogging. Overbroad policy statements, such as “Employees can not blog about work” or “Employees can not make derogatory statements about the Company in a blog” almost surely will violate the NLRA. Even more narrowly tailored policies, such as “no negative comments about your supervisor” could be a labor law violation. As unions become increasingly vocal, employers must take care to narrowly tailor their “blogging-control” policy.
Philip Gordon
Chair
