There has been much buzz recently about the NLRB striking down a social media policy that, among other things, prohibited employees from participating in social media on company time. Has the NLRB gone too far? Maybe not. As with many rulings to date, there is some important background missing from the hype. Let’s evaluate that now.
The NLRB administrative law judge (“ALJ”) recently issued an order addressing a variety of employee handbook rules in the Echostar Technologies, Inc. and Gina M. Leigh matter. Included in the Complaint was a charge that Echostar’s prohibition against use of social media on company time and equipment violated employees’ Section 7 rights. To those of us advising employers, this seemed a bit extreme. However, while news headlines might have appeared grim for employers, an analysis of the Order reveals something somewhat different.
What was the NLRB’s objection with Echostar’s social media rules? The NLRB’s General Counsel disliked two aspects of a much larger rule:
“[employees] may not make disparaging or defamatory comments about Echostar . . .” and
“[employees] may not . . . participate in these activities with Echostar resources and/or on Company time . . ..”
Although the General Counsel acknowledges the cutting-edge nature of social media, counsel argued “an employer can no more infringe on protected activity engaged in over social media than it could prohibit protected water-cooler conversation or handbills.”
In a lengthy analysis, the ALJ ruled the term disparaging was too broad – not surprising really, as this is consistent with the NLRB’s decision in Costco, see our previous post, NLRB Finds Costco’s Policy Prohibiting Defamation Unlawful. The next objection is more interesting – Echostar’s prohibition against the use of social media on its equipment or on company time. The ALJ highlighted the following arguments:
The General Counsel argue[d] that the new forum of social media combined with the “incredible mobility” of smart phones allow employees to engage in social media activities without resorting to the use of the employer’s computers or employer internet connections. Thus, argue[d] the General Counsel, employees are entitled to engage in social media use during breaks and after work in nonwork areas just as they may engage in any other Section 7 activities . . ..
The hang-up for the General Counsel was Echostar’s use of the term “company time.” According to counsel, the term did not convey to the employees that they could solicit on breaks, lunch, and before or after work.
Echostar argued that employees primarily use social media for personal reasons, unrelated to any solicitation or the exercise of personal right under Section 7. Furthermore, Echostar countered that:
Given the pervasive use of social media for personal matters unrelated to Section 7 during working time, a ban against social media on “company time” reasonably would be construed as nothing more than prohibiting employees from engaging in personal activities during working time.
So what happened? How did the ALJ rule on this issue? Actually, he didn’t. Instead, the ALJ noted that employers can restrict an employee’s use of social media via company equipment, and on an employee’s work time in a work area. This sounds right, doesn’t it?
Yet, the ALJ did not actually rule of this particular issue – instead invalidating the social media policy on the basis of the “disparaging or defamatory” provision. Yet, the NLRB’s general counsel’s position is still out there – that an employee may use personal smart devices to access social media sites during breaks, and before and after work in nonwork areas.
Where does this leave us in terms of an employer’s restriction of an employee’s use of social media on company property during company time? As with any cutting-edge legal issue, we will see a window of time when different opinions from different judges flourish. Hopefully, some consensus will develop. For now, based upon Echostar, a rule prohibiting the use of social media during actual work time, and with company equipment, seems legitimate.
What do you think will happen with this issue? Should we amend company handbooks when rulings, such as Echostar, come forward? Tough to tell. For now, this is a bit of a moving target.