icon on Even law firms can run afoul of the National Labor Relations Act.
A case was submitted for advice from the National Labor Relations Board’s Office of the General Counsel (“OGC”) as to whether: (1) the Employer maintained an unlawful anti-disparagement provision in its employment agreements; (2) anonymous postings on websites including Glassdoor.com constituted protected, concerted activity; and (3) the Employer retaliated against the posters by filing breach of contract lawsuits regarding the postings.
The OGC concluded in a March 4, 2019 Advice Memorandum that the Employer’s non-disparagement provision violates Section 8(a)(1) of the Act. The anonymous postings did not constitute protected, concerted activity and therefore the lawsuits were not filed in retaliation against protected activity. However, portions of the ongoing lawsuit are preempted because they seek to enforce the contractual non-disparagement provision that is at least arguably prohibited by the Act. Thus, the OGC concluded that the Employer will independently violate Section 8(a)(1) if it continues to prosecute those portions of the lawsuit alleging breaches of the non-disparagement clause.
As background, the Stange Law Firm specializes in family law issues, with numerous offices in the greater St. Louis, Missouri area. The Employer requires all newly hired support staff and attorneys to sign an employment agreement containing the following non-disparagement provision:
[D]uring and after Employee’s employment or association with Law Firm ends, for any reason, Employee will not in any way criticize, ridicule, disparage, libel, or slander Law Firm, its owners, its partners, or any Law Firm employees, either orally or in writing. However, nothing in this Section 3.2 shall be deemed to limit or prohibit Employee from engaging in concerted group activity and communications with co-employees to try to improve his or her working conditions, as provided under Section 7 of the National Labor Relations Act.
The Employer filed a lawsuit in Missouri state court, which was later amended, against a former employee and “Does 1-10,” alleging that former employees—both the known individual and unidentified former employees—had breached the non-disparagement provisions in their employment contracts by criticizing the Employer in negative reviews posted on various websites, including Glassdoor.com, Indeed.com, Avvo, Yelp, and Yahoo.business.
According to the OGC, the Employer’s non-disparagement provision is unlawful. The requirement that employees not “criticize, ridicule, [or] disparage” the Employer restricts core Section 7 activity. The rule is not limited to criticism of other employees, or the Employer’s products and services, which would not have the same impact on Section 7 activity. The Employer’s asserted interest in maintaining the rule, that it relies on its online reputation to advertise for clients and that negative reviews could hurt its business prospects, is not a unique interest nor strong enough to outweigh the significant interference the rule has with employee rights.
The “savings clause” did not make the rule lawful. The Board has said that the clause must do more than generally refer to the Act or Section 7 rights. An effective savings clause should address “the broad panoply of rights protected by Section 7” as well as be prominent and proximate to the rule that it purports to inform. While the clause here does include a plain language explanation of Section 7 activities that a reasonable employee would understand (“concerted group activity and communications with co-employees to try to improve his or her working conditions”), it does not include the “full panoply” of rights protected by Section 7. For example, the clause only addresses communications with “co-employees” and does not include third parties, such as unions. Therefore, a reasonable employee would still understand the Employer’s non-disparagement clause as prohibiting him or her from going to a union and saying anything negative about the Employer.
The former employees’ online posts, however, were not concerted. There was no evidence of any group discussions or plans amongst employees to post online negative reviews of the Employer or that employees planned to take group action once they were no longer employed by the Employer. There was no discussion of a specific labor dispute among the many issues mentioned in the reviews, nor did the posts include calls for group action or requests for other employees to take any action to support the posters. The OGC concluded that the posts were more akin to individual gripes and therefore not concerted.
The type of websites that the individuals used for their reviews also undercut finding the activity to be concerted. Those websites, most notably Glassdoor and Indeed, are not social media sites. Rather, they target job seekers and potential customers by hosting job postings and company reviews. In this regard, employer reviews posted on these sites, including those at issue here, are one-way communications; the sites do not allow for other employees to comment on the reviews or engage in any discussion. Thus, the posters could not reasonably be intending to initiate group dialogue about the issues in their respective reviews, since there was no way for employees to communicate with each other or any basis for believing that employees of the Employer would even see the reviews.
The anonymous posts were also not for mutual aid and protection. The evidence indicated that the posters were all former employees who had no intent to return to work for the Employer. As discussed above, the reviews were targeted at jobseekers who were not employees of the Employer, and they were not seeking to change the terms and conditions of employment of the Employer’s employees.
To the extent the former employees were seeking to hurt the Employer economically, or put it out of business, those goals were also not protected.
While the General Counsel would argue that the non-disparagement clause is unlawful, it had not yet been determined to be unlawful by the Board, and therefore a remaining lawsuit seeking to enforce the clause did not yet have an “illegal objective.”
However, once the Region issued a complaint alleging that the non-disparagement provision is unlawfully overbroad in violation of the Act, the portions of the ongoing lawsuit that seek enforcement of the provision would be preempted and the continued prosecution of the suits would violate Section 8(a)(1).
The OGC indicated that the Region should issue a complaint, absent settlement, alleging that the non-disparagement provision in the Employer’s employment agreement was unlawfully overbroad.