Employee Survival Guide® - Employees Now Have New Freedom of Speech Rights At Work

Starting point is 00:00:00 Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide, where I tell you, as always, what your employer does definitely not want you to know about, and a lot more. Hi, it's Mark, and welcome back. Today I'm going to talk about the newfound freedoms, freedom of speech for employees in the workplace. In an historic move, the federal government recently gave millions of working Americans new freedom of speech rights at work by banning pre- and post-dispute confidentiality agreements and non-disparagement agreements. The new rules apply to both private

Starting point is 00:00:43 sector employees and unionized employees. The National Labor Relations Board, the NLRB, just ruled in February of 2023 that non-disparagement and confidentiality provisions in employment agreements violate the National Labor Relations Act, the NLRA. Because the employment terms restrict the voluntary flow of information and complaints to the agency by employees and cuts off the agency's primary source for investigations of the job market and employer misbehavior. Adding to the excitement, President Biden signed into law the Speak Out Act on December 7, 2022. The act bans pre-dispute confidentiality agreements, but not post-dispute settlement agreements. In the workplace, in the cases involving sexual harassment and sexual

Starting point is 00:01:33 assault, employers may need to adjust their practices and policies, according to SHRM, the Society for Human Resource Management – to comply with the Speak Out Act, which invalidates nondisclosure agreements and nondisparagement agreements designed to keep employees from discussing instances of sexual harassment and sexual assault. The Speak Out Act rose out of the Me Too movement, where NDAs were used to silence employees from speaking out about sexual harassment and sexual assault. NDAs were used to silence employees from speaking out about sexual harassment and sexual assault.

Starting point is 00:02:10 Several states have passed laws also banning the use of NDAs. California, Illinois, Maine, New Jersey, New York, Oregon, and Washington State have all instituted laws to ban the use of NDAs in sexual harassment and sexual assault cases. What does this all mean for employees? The recent NLRB decision and the Speak Out Act are a huge and historic transformation in the dysfunctional employee-employer relationship that has persisted for far too long. The employer's hold on employee freedom of speech has been drastically reduced. The above new legal developments provides much greater protection for employees to speak out about sexual harassment and assault without fear of their employers firing them in retaliation and

Starting point is 00:02:57 threatening a breach of the NDA, the non-disclosure agreement. The NLRB decision in February 2023 strikes at the heart of the default management practices to silence employees who accept severance agreements with broad confidentiality and non-disparagement provisions, which are now common in every severance agreement. Both private sector and unionized former employees who signed severance agreements are now permitted to talk to current and former employees and the public at large using any conceivable medium of communication, such as Instagram and TikTok. To talk about the terms and conditions of their employment, complaints, and the severance they even received. That's a huge deal. severance they even received. That's a huge deal. The only limit on former employees' speech after signing a severance agreement with confidentiality and non-disparagement clauses is that they cannot

Starting point is 00:03:51 knowingly engage in defamatory statements about their former employers. Specifically, former employees cannot make disloyal, reckless, and maliciously untrue statements about their employers. Employees should also be aware of the Defend Trade Treat Secrets Act to ensure that they do not violate the recent protections afforded employers. Other than these two exceptions, everything else about employees' employment is allowed, so watch out, employers. And let me clarify, in this last portion, I did mention that employees are signing severance agreements with these provisions because these provisions can be used in a very narrowly tailored manner. Narrowly tailored so they don't cut off your ability to basically complain to the public about what's going on. We don't want to stifle their speech.

Starting point is 00:04:46 That's what the NLRB has. That's our policy in terms of employees making these complaints to anyone, including the agency. Now, the NLRB decision. The February 23, 2023 NLRB decision reversed prior board decisions. Now, I'm going to start quoting from the language of the decision because it's very important that you hear exactly what the counsel for the NLRB wrote in summarizing the new guidance after the decision. Holding that employers violate the NLRA when they offer employees severance agreements that require employees to broadly waive their rights under the Act. Specifically, the Board held that where a severance agreement unlawfully conditions receipt of severance benefits on the forfeiture of statutory rights, the mere proffer, meaning the giving of the agreement itself, violates Section 8A1 of the Act because it has a reasonable tendency to interfere or restrain the prospective exercise of those rights,

Starting point is 00:05:55 both the separating employee and those who remain employed. The severance agreement at issue in the case contained overly broad non-disparagement and confidentiality clauses that tend to interfere with, restrain, or coerce employees' exercise of Section 7 rights, means the right to speak out. Specifically, the non-disclosure provisions contained a non-disparagement clause that advised the employees they are prohibited from making statements that could disparage or harm the image of the employer. And the confidentiality clause in the same agreement advised employees that they are prohibited from disclosing the terms of the agreement to anyone, except for a spouse or professional advisor, unless compelled to do so by law. The severance agreement included monetary and injunctive sanctions for breach of these provisions. Again, that was the guidance from the counsel for the NLRB. A word of caution.

Starting point is 00:06:54 The above decisions do not cover supervisor or employees, as they are generally not covered under the NLRA. The test to determine if you are a supervisor under the NLRA, it can be found in the show notes to this episode. Was the NLRB decision politically motivated? I actually looked this up. The National Labor Relations Board that decided the now overturned decisions were made up of President Trump appointees. The majority of the current board is made up of President Trump appointees. The majority of the current board is made up of the political appointees of President Biden. The NLRB general counsel, who I just cited the guidance from, is also a Biden appointee. So it appears politics may have influenced the dramatic swing in the current law now favoring employees.

Starting point is 00:07:43 What employees and former employees can and cannot say. According to the February 2023 NLRB decision, the broad scope and the wide protection afforded employees by Section 7 of the Act bear repeating. It is axiomatic that discussions, terms, and conditions of employment with coworkers lies at the heart of the protection of Section 7 activity. Section 7 rights are not limited to discussions with coworkers, as they do not depend on the existence of an employment relationship between the employee and the employer. And the Board has repeatedly affirmed that the rights extended to former employees as well. It is further long established that Section 7 protections extend to employee efforts to improve the terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship.

Starting point is 00:08:45 employee-employer relationship. These channels include administrative, judicial, legislative, political forums, newspaper, the media, social media to be more specifically, and communications to the public at large are part and related to an ongoing labor dispute. Accordingly, Section 7 affords protection for employees who are engaged in communication with a wide range of third parties in circumstances where the communication is related to an ongoing labor dispute and when the communication is not so disloyal, reckless, or maliciously untrue to lose the act's protection. End quote. The last sentence I just stated is the anti-defamation exception to the broad pro-communication policy of the NLRA. Well, what about existing whistleblower protections for employees? There have always been state laws that protect employees from retaliation and wrongful termination after confronting their employers in matters of public concern.

Starting point is 00:09:46 Specifically, employees have the right, typically under the First Amendment and state constitutions, to speak out in good faith against employment practices that are fraudulent and harmful to the public at large. A final word. Although these new legal changes favor employees by providing more freedom of speech, I wanted to be clear about the overall ability of employees to engage in freedom of expression at work, especially in this DEI era. Employers are like private governments, with their own rules, and the state and federal governments have limited control over them. There are anti-discrimination statutes, of course, that bar employer misconduct. However, employers do in fact control much of what

Starting point is 00:10:27 you can and cannot say while working. In this new DEI era, many employers are cautious about instituting drastic control over employees' freedom of speech at work for fear of pissing off employees. But the DEI era is waning, and management may soon silence your speech while at work. The new Speak Out Act and the above NLRB decision I've talked about in this episode tip the balance back in the employee's favor. For now. If you'd like more information about this topic, please don't hesitate to call us at Karen Associates PC. Have a great week. Talk to you soon. If you like the Employee Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely,

Starting point is 00:11:17 that you can actually use and solve problems on your own and at your employment. So if you like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep the standards up. I'll keep the information flowing at you. If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to mcaryu at capcaw.com. That's CAPCLaw.com.

Employee Survival Guide® - Employees Now Have New Freedom of Speech Rights At Work

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