The federal government’s labor watchdog is using a more employer-friendly test to determine whether employers unlawfully bar their workers from talking to the press.
The National Labor Relations Board on Oct. 10 ruled 3-1 that an employer’s media contact restriction, which limits the situations in which its employees can give comments to the press, isn’t unlawful. The board weighed whether LA Specialty Produce, a wholesale foods distributor in California, had a media contact rule on its books that impeded its employees’ rights to discuss their work conditions and other subjects protected by the National Labor Relations Act.
Using the new “balancing test” from its Boeing decision to judge the lawfulness of workplace rules, the board majority found that a reasonable employee wouldn’t construe LA Specialty Produce’s rule as interfering with their rights under Section 7 of the NLRA.
The LA Specialty Produce decision shows how employers have some wiggle room in drafting a lawful media gag rule in the eyes of the NLRB. But a rule that broadly prohibits employees from talking to the press could still run afoul of the NLRA, as the board has previously determined.