Defending Another Illegal Employer Lawsuit
Triple D Wildlife is attempting to enforce illegal rules against protected activity.
Many employers across the country subject their workers to a long list of rules that restrict what they can say to the public. These rules go by various names, including confidentiality rules, non-disparagement rules, non-disclosure rules, and media-contact rules. In most cases, these rules violate Section 8(a)(1) of the National Labor Relations Act (NLRA) because they prohibit workers from exercising their right to concertedly publicize information about their working conditions.
Although these rules are illegal, they are rarely challenged. When you do challenge them, the remedy is just that the employer is ordered to rescind them. So employers have no real incentive to comply with the law. They can impose these illegal rules and scare workers from exercising their rights with the only risk being that, at some point in the future, they might be told to stop.
Most of the time, the rules just sit around in company handbooks or employment agreements with the employer hoping that they will keep their workforce in check. But periodically, employers actually try to enforce these illegal rules against their workers by filing a lawsuit.
Triple D Lawsuit
I have made a little practice out of defending workers who find themselves in this situation and have recently picked up a new case involving three former employees of Triple D Wildlife, a zoo of sorts that holds itself out to wildlife photographers looking to capture pictures that look like animals existing in their natural habitats.
The three employees, operating in concert with one another, publicized the working conditions at Triple D in a variety of ways, including by talking to the Rolling Stone. Triple D responded by filing a lawsuit against the three alleging that they had violated a confidentiality rule in their employment agreement.
The rule in question prohibits the disclosure of “confidential information,” defined as “information of material that is commercially valuable to Triple D and not generally known or readily ascertainable by the industry.” The rule then provides a non-exhaustive list of things that constitute confidential information, including “cost information,” “unpublished financial information,” “information concerning Triple D's employees, including salaries,” and “any other information not generally known to the public which, if misused or disclosed, could reasonably be expected to adversely affect Triple D's business.”
This rule is a flagrant violation of the NLRA. It explicitly restricts the disclosure of certain working conditions, such as employee pay, and is written so expansively that a reasonable employee would construe it as prohibiting them from disclosing any negative information about their working conditions as such disclosure “could reasonably be expected to adversely affect Triple D’s business.”
Filing a lawsuit to enforce an illegal contract clause, as Triple D did, is a separate violation of the NLRA. Filing a lawsuit to enforce any contract clause, whether the clause is illegal or not, against workers collectively speaking about working conditions, as Triple D did, is yet another separate violation of the NLRA.
Unfair Labor Practice Charge and Garmon Preemption
When an employer files a lawsuit like this, the proper response is to file an unfair labor practice (ULP) charge with the National Labor Relations Board (NLRB) alleging that the employer maintains an illegal rule and has filed an illegal lawsuit seeking to enforce that illegal rule. This will initiate a proceeding that should result in the illegal rule being rescinded, the employer being enjoined from continuing its illegal lawsuit, and the legal fees of the workers who were sued being reimbursed by the employer.
But filing the ULP charge does not, by itself, halt the lawsuit. In order to achieve that, it is necessary to file a motion to dismiss that argues that the lawsuit involves activity arguably prohibited by Section 8 or protected by Section 7 of the NLRA and that it must be dismissed until such time as the NLRB has had a chance to determine the status of the activity in question.
The attorneys for the three workers, including myself and Chris Carraway of The Animal Activist Legal Defense Project, prepared and then filed this motion yesterday in the Montana district court where the lawsuit was initiated.
One challenge in these kinds of lawsuits is that most legal professionals, including judges, are not very familiar with the NLRA, the NLRB, or this particular area of labor law. People are naturally skeptical of things they haven’t seen before, especially if they have been practicing law for a long time. But it really is the case that these boilerplate contract terms that tens of millions of workers are subject to and that probably give rise to hundreds of lawsuits across the country every year are illegal and unenforceable.