NLRB Division of Advice Addresses Law Firm's Anti-Disparagement Provision and Finds Anonymous Postings on Glassdoor Not Protected Concerted Activity | Practical Law

NLRB Division of Advice Addresses Law Firm's Anti-Disparagement Provision and Finds Anonymous Postings on Glassdoor Not Protected Concerted Activity | Practical Law

The Office of the General Counsel of the National Labor Relations Board (NLRB) recently released an advice memorandum finding that an employer's non-disparagement provision restricts core Section 7 activity and therefore is an unlawful, Category 2 rule under Section 8(a)(1) of the NLRA, but that anonymous postings on website like Glassdoor were not protected concerted activity.

NLRB Division of Advice Addresses Law Firm's Anti-Disparagement Provision and Finds Anonymous Postings on Glassdoor Not Protected Concerted Activity

by Practical Law Labor & Employment
Law stated as of 02 Aug 2023 • USA (National/Federal)
The Office of the General Counsel of the National Labor Relations Board (NLRB) recently released an advice memorandum finding that an employer's non-disparagement provision restricts core Section 7 activity and therefore is an unlawful, Category 2 rule under Section 8(a)(1) of the NLRA, but that anonymous postings on website like Glassdoor were not protected concerted activity.
NOTE: See the UPDATE at the end of this resource for subsequent developments affecting this advice memorandum.
On November 13, 2019, the Division of Advice of the NLRB's Office of the General Counsel (Advice) released an advice memorandum dated March 4, 2019, in Stange Law Firm (14-CA-227644). The advice memorandum concluded that:
  • A non-disparagement provision maintained by Stange Law Firm requiring that employees not "criticize, ridicule, [or] disparage" the employer:
    • restricts core Section 7 activity and is an unlawful, Category 2 rule under Boeing;
    • is not outweighed by 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 made lawful by the employer's savings clause, which did not include all rights protected by Section 7; and
    • therefore violates Section 8(a)(1) of the NLRA.
  • Anonymous postings criticizing the law firm in negative reviews posted on various employer review websites such as glassdoor.com did not constitute protected concerted activity. They were more like individual gripes and did not indicate any kind of group action. Additionally, the posts by former employees warning potential applicants were not for mutual aid or protection. Therefore, the law firm's lawsuits against former employees were not filed in retaliation against protected activity.
This advice memorandum is not binding precedent from the NLRB. However, it provides insights concerning non-disparagement provisions and the types of social media activity the Board is likely to find to be protected concerted activity in the non-disparagement context.

UPDATE

On August 2, 2023, a Board majority adopted a new burden-shifting standard for evaluating facial challenges to employer work rules that do not expressly restrict employees' protected concerted activity under Section 7 of the NLRA, overruling Boeing and the subsequent work rules decisions applying the categorical classification system articulated therein (Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023); for more information on this decision, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules).