A jolt to private colleges from the NLRB: Gagging employees violates federal labor law

A case initiated on behalf of Northwestern University football players aggrieved by institutional restraints on their freedom to give interviews has the potential to greatly improve journalists’ access to sources at all private businesses, colleges and universities included.

California labor-rights lawyer David A. Rosenfeld filed a complaint with the NLRB in August 2015 alleging that Northwestern’s restrictions on the speech of football players violated the National Labor Relations Act (NLRA), a federal statute that protects the rights of employees to organize in support of better working conditions. While a Sept. 22 memorandum from the National Labor Relations Board (NLRB) received widespread attention for its impact on athlete/media communications, the opinion in no way limits itself to the locker room. Its ripples will be felt at any private organization that prohibits its employees from speaking to journalists or requires employees to refrain from criticizing workplace policies.

The NLRB is a federal agency that enforces compliance with the NLRA, which applies only to private-sector employers, including Northwestern, and not to public agencies.

The Board responded to Rosenfeld’s complaint in a Sept. 22 “Advice Memorandum” from its associate general counsel. The memorandum flagged numerous restraints on speech in Northwestern’s football team handbook as unlawful if applied to employees. Practices identified as illegal included:

  • Prohibiting interviews with the news media without advance approval of a public-relations officer.
  • Direct employees to say only “positive” things to the news media and to avoid “negative” comments.
  • Telling employees that their speech on social media will be “regularly monitored” by supervisors.
  • Ordering employees to refrain from “inappropriate” or “embarrassing” posts on social media that injure the “image and reputation” of the employer.
  • Telling employees that all aspects of their work are confidential and must “stay within the family.”

Because Northwestern rescinded and rewrote the team handbook in response to the complaint — making changes such as offering the assistance of a sports-information officer in fielding interview requests instead of requiring pre-approval — the Board found no violations to act on and closed the case.

Under the Obama administration, the NLRB has been aggressively protective of employee speech that even hints toward an effort to collectively improve working conditions, even in an informal way such as complaining to co-workers on social media.

The Northwestern memo builds on an earlier March 2015 advisory memorandum cautioning employers against excessively controlling their employees’ speech with all outside audiences, not just the media.

Agency lawyers reviewed employers’ handbooks and identified a number of prohibitions as unlawful under the NLRA, including:

  • “Do not discuss customer or employee information outside of work”
  • “Be respectful of others and the Company”
  • “Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online, and avoid the use of offensive, derogatory, or prejudicial comments”
  • “Employees are not authorized to speak to any representatives of the print and/ or electronic media about company matters unless designated to do so by HR, and must refer all media inquiries to the company media hotline”

The bottom-line takeaway is that the NLRB considers it a violation of federal law for any private employer, including a college or university, to (1) gag employees from giving interviews without the institution’s approval or (2) require that interviewees say only favorable things or punish those whose comments are unflattering to the institution. 

This could significantly increase journalists’ access to sources at private colleges. In the current image-obsessed climate, more and more institutions are funneling all media interactions through a public-relations bottleneck that delays and at times entirely obstructs interviews. Such policies now are almost certainly illegal, and can be challenged by way of an “unfair labor practice” complaint to the NLRB by any affected employee.

Limits of the ruling: Who’s an “employee?”

For journalists interested in access to campus news sources, the NLRB interpretation comes with two significant limiting factors.

The first is that only “non-supervisory” employees are covered by the NLRA, and “supervisor” is a broad category under federal labor law. A provost, athletic director or other managerial-level employee is certainly a “supervisor” and can legally be gagged from speaking with the media — and even some professors may qualify as well.

In December 2014, the NLRB ruled that professors are not automatically exempt from the NLRA as supervisory employees based on their title and status alone. Rather, the NLRB ruled, employer must demonstrate that professors actually exercise meaningful managerial authority over such policies as enrollment and budgeting, which (particularly for non-tenure-track adjuncts) will be difficult for any institution to prove. So a no-interviews policy probably can extend to educators at the level of a dean or even a department chair, but the policy will be much more challenging to justify if it extends to rank-and-file educators. 

One group that clearly is covered by the Northwestern opinion is graduate teaching assistants. In August 2015, the NLRB declared that grad assistants are employees for NLRA purposes and therefore entitled to unionize and bargain with their employers. Any private college that prohibits graduate assistants from speaking with journalists or tries to restrict the content of their communications with the media is breaking the law.

The second limiting factor is that — ironically, since the initial story was treated as primarily one about sports — athletes may in fact not be covered at all.

For purposes of ruling in the Northwestern football case, the NLRB assumed — but did not actually decide — that college athletes are “employees” under the NLRA. Basically, the board told the players “even if you qualify as employees — which we’re not saying — we can’t order Northwestern to do anything more, because they’ve already changed any policy that might have violated employee rights.”

In an earlier case involving Northwestern players, the NLRB refused to decide whether athletes at private colleges can be “employees.” The regional NLRB office in Chicago had declared the players to be covered by the NLRA, briefly jolting the college athletics universe as institutions confronted the prospect of having to pay athletes and afford them employee benefits. 

But for every other rank-and-file employee at a private institution — and for the journalists who cover them — it’s a brand-new day.It remains an open question whether athletes can benefit from the victory they’ve won for private-college employees; it will take another NLRB complaint to tee up the issue squarely. But the Board threw out that ruling and declined to consider the Wildcat athletes’ case, stating that a ruling in favor of the players might destabilize college athletics because the majority of colleges are public institutions and exempt from NLRA standards. That non-decision vacated the earlier ruling of a regional NLRB representative finding that college football players are, in fact, employees of their institutions.

What about public institutions?

Because the NLRB governs only private employers and not governmental workplaces, the Northwestern ruling seemingly creates a paradox: Employees at state institutions — where the First Amendment applies and where the public’s interest in transparency is at its highest — have fewer rights to speak out publicly than their counterparts at private colleges.

Not necessarily. Federal courts have consistently struck down excessively broad bans on interactions between government employees and the media. 

As described in this article for the SPLC’s Report magazine, the Supreme Court has viewed blanket restraints on public employees’ speech with skepticism, indicating that the First Amendment requires a more compelling justification for a categorical ban on speech than for punishing a single employee whose speech disrupts the workplace. The Court struck down such a blanket ban in a 1995 ruling, finding that “operational efficiency” could not justify restraining federal employees’ outside speaking activity.

Arguably, the NLRB’s Northwestern opinion just puts private-sector employees on par with where government employees already are, albeit in a clearer way. 

As a matter of public policy and good governance, no higher-education institution — public or private — should be gagging its employees’ interactions with the media. Narrower prohibitions against disclosing confidential student records or compromising unfinished criminal investigations are legally more defensible, and the rare employee who disregards these prohibitions can be dealt with individually without compromising the rights of others.

Does your college have a no-interviews policy that violates federal law? Send a copy of the policy to the Student Press Law Center and we’ll look into it: splc@splc.org.