Why it matters: Employers have lately faced tough scrutiny from the National Labor Relations Board (NLRB) and the agency’s administrative law judges (ALJ) about employment policies. Employee handbooks and other policies addressing issues ranging from social media to confidentiality to hats have all been struck down as violations of employee rights under the National Labor Relations Act (NLRA). In a rare win, an ALJ recently held that a social media policy drafted by Landry’s, Inc. – the parent company behind restaurants including Bubba Gump Shrimp Co. – did not violate the NLRA. The policy featured cautionary language, the decision explained, and did not explicitly prohibit workers from posting job-related information. Instead, the employer warned employees to think long and hard before posting comments that might hurt or defame co-workers or cause a decrease in morale. “In other words, it is not the job-related subject matter of the postings that are of concern to the [employer], but rather the manner in which the subject matter is articulated and debated among the employees,” the ALJ wrote.

Detailed Discussion

Based on a charge filed by a former employee, the NLRB investigated Bubba Gump Shrimp Co., a wholly owned subsidiary of Texas-based Landry’s, Inc. A former server at a Bubba Gump restaurant in Monterey, California claimed that she was illegally terminated because of a Facebook post.

The Regional Office determined that Sophia Flores was not fired in violation of the NLRA. But the Regional Office also concluded that the social media policy in place at the time of Flores’ employment was unlawful and issued a complaint.

The policy stated: “While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.…”

“Be also mindful that if the Company receives a complaint from an employee about information that you have posted about that employee, the Company may need to investigate that complaint to insure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue.”

A later section added that prior written approval was required to “use any words, logos, or other marks that would infringe upon the trademark, service mark, certification mark, or other intellectual property rights of the Company or its business partners.”

Could employees reasonably construe the policy to prohibit activity protected by the NLRA?

After briefing and a hearing, ALJ Gerald A. Wacknov answered in the negative.

The policy did not explicitly prohibit employees from posting their own job-related information or information regarding the jobs of coworkers, personal information regarding coworkers, or information regarding the company, he said.

“Rather it urges employees not to do so if such information is likely to create morale problems,” Wacknov wrote. “[T]he cautionary language is modified by the language in the next sentences which may be understood to clarify that the avoidance of morale problems may be ‘accomplished’ by simply being civil to others and their opinions.”

In other words, “it is not the job-related subject matter of the postings that are of concern to [the employer], but rather the manner in which the subject matter is articulated and debated among the employees,” he added. “Forethought and civility in the exercise of protected concerted or union activity are not mutually exclusive concepts.”

Lacking restrictions against posting “personnel” information or “payroll information,” the policy does not violate the NLRA, the ALJ said.

Turning to the prohibition on using the “words, logos, or other marks” of Landry’s without preauthorization, the decision rejected the NLRB’s argument that legal training was necessary to understand the implications of such language. “A critical reading of [the paragraph] would cause a conscientious employee to carefully evaluate its applicability to union-related or concerted activity-related media postings,” Wacknov wrote. “As infringement is not defined, the employee is placed in the position of having to exercise his or her best judgment in determining whether postings that include particular ‘words, logos, or other marks’ may run afoul of the provision.” The provision could more accurately be characterized as encouraging employees to respect the laws, the ALJ said.

Finally, he noted that the policy is no longer in effect, having been updated in a later edition of the employee handbook, and that no evidence existed that any of the social media provisions were actually enforced against any employee.

Based on these findings, the ALJ dismissed the complaint in its entirety.

To read the ALJ’s decision in the case against Landry’s, Inc., click here.