Written by Jeremy Mittman and Louise Truong

The National Labor Relations Board (the “Board”) frequently evaluates employer policies regarding whether they violate employees’ rights to unionize under Section 7 of the National Labor Relations Act (“NLRA”).  As such, it is essential for employers, including those who do not have union employees, to consider the Board’s decisions when drafting and reviewing their policies and handbooks.  Recently, the Board confirmed in David Sax Productions LLC, 370 NLRB No. 103 (2021),the legality of non-disparagement, non-solicitation, and e-mail workplace rules and policies. 

Non-Disparagement Policy

In David Sax Productions, LLC, the employer had a non-disparagement policy that applied to any “blogging by employees.”  Specifically, employees were prohibited from engaging in any blogging that was “detrimental to [the employer’s] best interests” or “that may harm or tarnish the image, reputation and/or goodwill” of the employer or any of its employees. 

The Board held that although the rule against “detrimental” messages might adversely affect Section 7 activity, the employer’s “interests in preserving its reputation and goodwill and the standing of its employees outweigh that potential impact.” The Board therefore concluded that the workplace rule prohibiting disparaging remarks against the employer did not violate Section 8(a)(1) of the NLRA, i.e. did not interfere with an employee’s rights under Section 7. 

Non-Solicitation Policy

The Board also weighed in on the employer’s non-solicitation/distribution policy, which provided that “Requests from outside people or organizations to sell merchandise, solicit contributions, distribute literature, arrange displays, or use Company facilities should be referred to the Human Resources Representative.” 

The Board held that on its face, the non-solicitation/distribution rule applied to only “outside people or organizations,” in other words, nonemployees.  Because Section 7 of the NLRA only applies to employees, a “rule requiring requests from third parties for access to solicit or distribute literature to be referred does not implicate Section 7 rights.”  Accordingly, the Board found that this policy did not violate the NLRA.     

Email Signature Blocks

Finally, the Board held that an employer did not violate Section 8(a)(1) of the NLRA by maintaining an email policy that prohibited customized signature lines.  Its decision was based on three reasons:

• First, the employer’s rule against altering the signature-block wording applied neutrally to both business and personal reasons.  Therefore, there was no legitimate claim that said policy was done to discriminate against employees who engaged in union activity.
• Second, there was no evidence to show that the employer was discriminatorily enforcing its signature-block rule against Section 7-protected messages only.
• Third and most importantly, the Board confirmed that an employee has “no statutory right to use an employer’s email (or other equipment) for Section 7 purposes.”

As a result, the Board affirmed that an employer may have a facially neutral policy that prohibits employees from using its company emails for non-business purposes, including NLRA-related activities.

Despite the recent favorable rulings by the Board, with the new administration, it is very possible that the Board will continue scrutinizing the above policies and potentially reverse course on its David Sax Productions LLC decision.  Employers therefore should continue monitoring the Board’s decisions and consult with an employment attorney when drafting and revising their workplace rules and policies.