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Employees' Right To Speak To Media Protected By First Amendment And National Labor Relations Act

The Brechner Center for Freedom of Information released a report on the legality of employers limiting their employees ability to talk with media outlets. (Photo courtesy of Sam McGhee)
The Brechner Center for Freedom of Information released a report on the legality of employers limiting their employees ability to talk with media outlets. (Photo courtesy of Sam McGhee)

A recent analysis conducted by the University of Florida’s Brechner Center for Freedom of Information concluded that federal labor laws make it illegal for employers to forbid workers from talking to reporters.

The report published in January, discusses how the National Labor Relations Act protects private-sector employees’ freedom of speech.

The act grants employees the right to engage in activities to improve working conditions without fear of employer retaliation, which has been interpreted by the National Labor Relations Board to include discussing workplace issues with the media.

Brechner Center Director and lead author of thereport Frank LoMonte said this right exists so people can advocate for better working conditions.

“I really think that it is the widespread belief of most people that once you join the workforce, you sign away your rights to criticize your employer,” LoMonte said.

This is due to the common no-interview policies in corporate America, where privately owned companies often only permit statements from professional public relations representatives.

“It seems like this is inhibiting the flow of information and causing journalists to get this very filtered and unrealistic perspective on what’s going on,” LoMonte said.

When companies are found violating the National Labor Relations Act, LoMonte said, the consequences are not usually severe. Companies usually receive an order from the National Labor Relations Board to rescind the policy.

LoMonte and others at the Brechner Center began the analysis because so many journalists were complaining they couldn’t get access to lawmakers and government officials.

But individuals working in any government agency, public school or university are part of the public sector, and the National Labor Relations Act does not apply. Rather, the First Amendment guarantees free speech rights for employees in those occupations.

Public university students and student athletes on scholarships are part of the public sector, too, and must refer to their First Amendment rights.

“The First Amendment works in a very similar way to the National Labor Relations Act,” LoMonte said, “and there are decades worth of federal court cases saying that government agencies can’t gag their workers from speaking to the media either.”

The courts also ruled that employers can make employees surrender their First Amendment protection only to the extent necessary to get their jobs done.

“In order to be able to tell honest, candid stories about what is going on inside of the business world,” LoMonte said, “you have to be able to have unfiltered discussion with a worker.”

Kathryn Foxhall, a committee member for the Society of Professional Journalists in Washington, D.C., agrees with LoMonte and said these gag policies have kept corporate businesses from knowing what’s happening in their communities.

Foxhall also said the society identified this as a high-priority censorship issue seven years ago.

“This is an across-the-board policy that you never speak to the media,” Foxhall said. “The entire journalism community needs to investigate how this has kept things from the public.”

Foxhall said employers may keep their workers from talking to reporters so they can “get the story out the way they want it out and prevent anyone on the inside from saying anything negative.”

WUFT contacted the Gainesville Chamber of Commerce, UF’s Poe Business Ethics Center and several local businesses, who all declined to comment on the issue.

But Robert Emerson, the Huber Hurst professor of business law for the University of Florida, said there are a several reasons why employers would be reluctant to have their employees talk directly to reporters.

“They want reporters to go to people that the employer feels are better suited to give an answer that doesn’t cause a problem for the employer,” Emerson said.

Problems could include reporters getting incorrect information or information the company views negatively in terms of public relations.

But when employers violate the National Labor Relations Act, Emerson said it’s likely because they didn’t know about the law or were unsure of its meaning.

In some instances, Emerson said, employers have the right to restrain their employees from talking about sensitive information like trade secrets, customer contacts or suppliers.

Other times, employers and their employees sign nondisclosure agreements that are subject to public policy concerns.

“Contracts will often give great sway to people such as employers, businesses and the like,” Emerson said, “because if someone signs it and employers can refer to it, sometimes (the employees) think they’re bound, but they’re really not.”

Emerson believes the best way to keep communication transparent between employers and their employees is to form a well-crafted policy that specifies how workers can proceed in terms of speaking to journalists.

“Then employees will likely know what rights they do have when speaking to media,” Emerson said, “and it’s a time for employers to voice what their concerns are and why they have troubles with the media.”

However, LoMonte and Foxhall both said they believe gag policies will continue until employees stand up and journalists press the issue.

“I think that we will continue to see companies forbidding their workers from talking to the media as long as the consequences aren’t that great and there’s a lack of awareness,” LoMonte said.

Foxhall said journalists need to raise public awareness of the problems such policies create.

“I think it’s on journalists first, both organized and individual,” Foxhall said. “Employees are in a very difficult position in that they don’t know anybody objects to these rules.”

Employees who are restricted by gag policies or are experiencing workplace issues are encouraged to reach out to third party organizations, like labor unions or media outlets, because third parties can file complaints on behalf of workers.

“We’ve seen labor unions file complaints even though they’re not directly the person impacted,” LoMonte said. “The law is very open-ended about who can file a complaint.”

By the end of March, the Brechner Center hopes to publish a second report discussing public-sector employees’ right to free speech.

"The big takeaway," LoMonte said, "is that all businesses should take a hard look at their contracts, manuals and policies, and make sure they’re not excessively restricting their employees’ speech."

*University of Florida's College of Journalism and Communications is home to the Brechner Center for Freedom of Information, as well as WUFT News.  

Kristen is a web editor and reporter for WUFT News. She can be reached by calling 352-392-6397 or emailing kaltus@ufl.edu. Follow her on social media @kristenaltus.