It’s been a little while since we talked about the NLRB and its feelings on “protected concerted activities” and social media policies. After all, there are other social media and employment law issues worth considering from your company’s standpoint. But lest we forget them completely, the NLRB’s General Counsel issued a new report late last week on the issue of workplace social media policies. This new report is helpful in some respects, still confusing in others.
General Counsel Griffin issued his report to “continue the practice of issuing periodic reports of cases raising significant legal or policy issues,” and specifically to “offer guidance on my views of this evolving area of labor law, with the hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.” Interestingly, the report’s first paragraph states:
“Although I believe that most employers do not draft their employee handbooks with the object of prohibiting or restricting conduct protected by the National Labor Relations Act, the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the Act.”
In other words, “good intentions” and “ignorance of the law” are not defenses.
The report provides a convenient side-by-side-like analysis of what language the NLRB has and has not considered to be violative of the “protected concerted activities” right under the Act in eight different categories of rules: (1) confidentiality and non-disclosure; (2) employee conduct toward the company and its supervisors; (3) employee conduct toward co-workers; (4) interactions and communications with third parties and the general public; (5) the use of company logos, copyrights and trademarks; (6) workplace photography and recordings; (7) the ability of employees to leave work; and (8) conflicts of interest. The report concludes with specific do’s and don’ts examples from a policy established by Wendy’s International LLC.
The report is helpful to the extent it allows lawyers and employers to parrot certain exact language referenced in the report and point to the report in a subsequent NLRB proceeding if criticized for using language that appeared to have had the NLRB’s blessing. But what happens if the language does not always apply to your company’s particular workplace or workforce, or if you simply decide to paraphrase or tweak the wording in this report to customize your policies? And, more critically, what happens if you cannot reconcile some seemingly inconsistent conclusions drawn in the report or spot the lines being drawn that do not have an obvious rationale?
Furthermore, how does an employer know when the NLRB will or will not place favorable weight on the subjective “contextual analysis” it has reserved for itself on a case-by-case basis, and the ultimate impact that might come simply from the page in a larger handbook on which the subject language happens to be placed? On the latter point, the report suggests that the NLRB could determine that identical language violates and doesn’t violate the Act based on context and handbook placement, without offering much guidance (if such guidance is even possible) on how the NLRB would determine that.
Just by way of a few select examples, consider the following from General Counsel Griffin’s new report:
- Can’t say “you must not disclose proprietary or confidential information about [the employer, or] other associates . . .,” but can say “no unauthorized disclosure of business secrets or other confidential information” and “do not disclose confidential financial data, or other non-public proprietary company information” (pages 4-6).
- Employee criticism of an employer is protected if it is false, but is not protected if it is maliciously false (page 7).
- Employees must be allowed to be rude and discourteous to a supervisor or management, but can be prohibited from being rude and discourteous to co-workers (page 7).
- Can’t say that “[c]hronic resistance to proper work-related orders or discipline, even though not overt insubordination, will result in discipline,” but can say that “[e]ach employee is expected to work in a cooperative manner with management/supervision . . .” (pages 8-9).
- References to “company employees” would be broad enough to include supervisors, but a reference to the “general public” does not include supervisors (page 10).
- Can’t say “walking off the job is prohibited,” but can say “entering or leaving Company property without permission may result in discharge” (page 17).
Employer Take Away: What should you as an employer take away from this development?
In fairness to the NLRB, this certainly is an “evolving area of labor law.” This latest guidance is helpful in attempting to marshal the NLRB’s most recent rulings on common categories of workplace rules. But there is still more needed before employers (and those advising them) can truly be guided on permissible conduct moving forward.
The NLRB’s current positions are certainly subject to change, particularly as the political administration in Washington changes. Its positions will likely be subject to judicial analysis as well, which may prove to be the ultimate arbiter of the enforceability of these positions. For the moment though, as we’ve said before, your company should have a healthy respect for the NLRB’s pronouncements on workplace policies to avoid becoming the Board’s target, and should seek assistance when drafting or reviewing your workplace policies.