Boilerplate No-Contact Order To Employee Illegal

There has been little litigation in the public sector about the circumstances under which an employer can issue a “no-contact” order to an employee under investigation, prohibiting the employee from discussing the matter with others. To be sure, the National Labor Relations Board has addressed the issue in the private sector, holding that “to justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ rights.” However, the public sector cases touching on the issue have been rare, and many public safety agencies routinely issue no-contact orders to employees under disciplinary investigation.

Thus it was significant to see California’s Public Employment Relations Board squarely consider the question of the legality of broad no-contact orders. The Board addressed the issue in the context of California’s Educational Employment Relations Act, which, like most states’ labor statutes, states that it is unlawful “to impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter.”

The case involved a confidential directive issued by the L.A. Community College District to Carlos Perez, a teacher. Perez was on administrative leave pending an evaluation of his fitness to teach. The District ordered Perez “not to contact any members of the faculty, staff or students” while he was on administrative leave.

The Board ruled that the directive was an unfair labor practice because it interfered with Perez’s exercise of his protected rights. The Board found that “the directive could reasonably be construed to prohibit a variety of protected activities such as contacting members of the union, initiating a grievance or otherwise enlisting the support of fellow employees, and closely resembles the type of overbroad blanket employer rules prohibiting the discussion of employment conditions which have been found to violate protected rights.”

The District argued that the directive was “boilerplate language” used whenever an employee was placed on administrative leave and was necessary to prevent the possibility that the recipient of the no-contact order would taint the testimony of other employees. The Board rejected this argument and found that the District presented no evidence about its investigation and did not explain how the integrity of such an investigation could be jeopardized by Perez’s participation in protected activities. As a result, the Board concluded that the harm to Perez’s protected rights was not outweighed by the District’s interest in using an overbroad directive without attempting to clarify its scope.

The Board explained that it “does not look favorably on broad, vague directives that might chill lawful speech or other protected conduct.” Because the employees could have reasonably construed the directive to restrict a protected activity and since there was no “legitimate and substantial business justification” for the directive, it was illegal.

The District also pointed to the fact that it did not expressly threaten Perez with discipline if he violated the no-contact order. The Board rejected this argument as well, commenting that “Board law is settled that ambiguous employer rules that reasonably could be read to have a coercive meaning are construed against the employer. The law does not require that a rule contain a direct or specific threat of discipline in order to be found unlawful. An employer rule prohibiting protected activity violates the law even if it never has been enforced.”

The Board closed with the note that it was not necessarily declaring all no-contact orders illegal: “The burden, however, is squarely on the employer to demonstrate that a legitimate justification exists for a rule that adversely impacts employees’ protected rights. Here, it is undisputed that employees placed on administrative leave routinely are directed not to talk to others about the substance of the investigation without any determination by the District whether such confidentiality is necessary. The District offers no explanation as to why the directive was necessary to preserve the integrity of the District’s investigation.”

Perez v. L.A. Comm. College Dist., LA-CE-5839-E, PERB Decision No. 24 (December 24, 2014).