Why it matters

Prohibiting social media activity by employees that “reflect[s] poorly” on the employer violates the National Labor Relations Act (NLRA), an administrative law judge (ALJ) determined. Employees filed an unfair labor charge against National Captioning Institute (NCI), challenging two rules they alleged infringed on their Section 7 rights under the statute. In addition to the problems with the social media policy, the ALJ found that an “unacceptable behavior policy” could reasonably be read by employees to ban them from criticizing NCI, and ordered the employer to rescind both policies. The ALJ also held that the termination of two workers because of their union activity should be remedied by rehiring them and providing back pay.

Detailed discussion

A nonprofit corporation, National Captioning Institute, Inc., provided closed-captioning, subtitling and other media services for national broadcasters, cable TV networks, corporations and universities.

In early 2016, the National Association of Broadcast Employees & Technicians-Communications Workers of America attempted to unionize the company’s offices. The employer began monitoring its employees’ union activities, searching chat logs on the company’s messaging system and identifying workers supporting the movement.

During the same time period, the company decided to close its Texas office and offered some of its workers the option to apply for remote, work-from-home positions or transfer to other offices. Two employees previously identified as pro-union had their requests to work from home denied, even though they both had positive performance reviews and one had already been working remotely for years.

After both were terminated, they filed unfair labor charges with the National Labor Relations Board (NLRB). As part of the action, they also challenged two personnel policies.

The social media policy stated: “If you opt to post about your job on social media, it must be done responsibly … [Here are] … our guidelines …” Specific instructions detailed a prohibition on posts about NCI’s software as well as subjective commentary that “could reflect poorly upon NCI’s professionalism or reputation” or commented on the quality of other captioning. Further, the employer instructed workers not to “use the NCI name on any posts that are Google-searchable,” reminding them that “[y]ou are NOT anonymous on the internet.”

A second policy addressed “Unacceptable Behavior,” prohibiting employees from accusing NCI management of dishonesty and acting in bad faith, complaining in an “aggressive and hostile manner” to either management or coworkers, disparaging and bullying management, and spreading personal information about NCI employees.

Considering the personnel policies, Administrative Law Judge (ALJ) Robert A. Ringler found both violated Section 8(a)(1) of the National Labor Relations Act (NLRA).

The social media policy was unlawful in several ways, the ALJ said. Employees could reasonably construe the restriction on generating social media posts that do not “reflect well upon NCI” to ban their Section 7 right to collectively criticize their employer or workplace, he wrote. The policy also improperly banned usage of the company’s name on searchable posts, which “could reasonably be construed by employees to ban them from naming NCI in posts about their wages, hours or other terms and conditions of employment on any ‘Google-searchable’ platform.”

The “online harassment” prohibition could be read by employees to bar online Section 7 activities such as solicitations to initially resistant coworkers to support the union, while the software posting ban left no exception for software postings that do not reveal proprietary matters while simultaneously touching upon collective concerns.

Similarly, the Unacceptable Behavior policy violated the NLRA by prohibiting disrespectful workplace commentary, “which could reasonably be construed by employees to ban statements of criticism of their employer,” while the bar on “spreading … personal information” about coworkers could be understood to ban sharing wage and other workplace data for collective purposes, Ringler wrote.

Additional violations of the NLRA included the employer’s surveillance of email, chat logs and other electronic communications, as well as the discharge of both employees.

The ALJ ordered the company to rescind the overbroad policies and offer both workers full reinstatement to their former jobs without prejudice to their seniority or any other rights or privileges, making them whole for any loss of earnings and other benefits including back pay.

To read the decision and order in National Captioning Institute, Inc., click here.