In late 2011 and early 2012, the National Labor Relations Board began to significantly weigh in on the propriety of employer policies that addressed employees' use of social media to convey their thoughts on workplace issues. In Part 1 of this series we will recount the evolution of an increasingly aggressive approach by the NLRB over the last three years to restrict the scope or content of these social media policies. (You will also want to read David Phippen’s analysis of the latest guidance, which was issued last week by the NLRB General Counsel, after this bulletin had already gone to press.) In Part 2, we will focus on court decisions discussing social media in a variety of contexts.
The underpinning for the Board to review employer social media policies is found in Section 7 of the National Labor Relations Act, which states in relevant part:
Employees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to "interfere with, restrain or coerce employees in the exercise of rights guaranteed in Section 7 of this Act."
It is important to point out that these parts of the NLRA apply to non-union as well as unionized facilities. Some of the early unfair labor practice charges that were filed challenging social media policies were filed by unions on behalf of their members, alleging that the employer either failed to bargain about the policy (a violation of § 8(a)(5)) or that the policy on its face violated Section 7 rights (a violation of § 8(a)(1)). When these earlier charges were filed it was difficult to get guidance from the Regional office of the NLRB where the charge was filed as to what would constitute a compliant social media policy. Then, in the spring of 2012, in a case challenging Wal-Mart's Social Media Policy, Wal-Mart modified its policy to be compliant with the NLRA as interpreted by the Board. That policy provided at least some guidance as to what would be acceptable to the Board. Nevertheless, Wal-Mart's policy did not necessarily fit the needs of other companies and was never intended to be a “one size fits all” policy.
After approval of the Wal-Mart policy, many cases have been decided by the NLRB regarding the legality of social media policies. The legality of any social media policy is determined on a case-by-case basis. What follows is a summary of recent social media policy decisions reached by the NLRB in 2014.
Durham School Services, L.P., involved a school bus operator's social networking policy, which threatened employees with discipline for a variety of infractions including publicly sharing information “related to the company or any of its employees or customers.” The NLRB concluded that the policy was unreasonably broad and vague under the NLRA and that employees could interpret the policy as restraining their right to communicate with each other regarding work issues and “for their mutual aid and protection.”
Lily Transportation Corporation involved an information posting rule contained in an employee handbook. The posting rule was designed to protect the company's public image. An Administrative Law Judge concluded that the rule did not distinguish information about customers and company business, on the one hand, from information that employees should have been free to share, on the other. The policy was not restricted to confidential or sensitive company information. The ALJ concluded that the restrictions of the policy were not drafted clearly enough for employees to understand what was prohibited and what was allowed, even though the company’s handbook included a longer, more detailed confidentiality policy.
In Hoot Winc, LLC, a company that provided restaurant management services was found to have violated the NLRA when it terminated a server for posting disparaging remarks about coworkers and managers on social media in violation of a handbook rule prohibiting insubordination. The ALJ concluded that because the rule did not define terms like “insubordination,” “lack of respect,” or “cooperation,” it was too subjective and left employees without guidance as to what was acceptable and what was not. Moreover, the ALJ concluded that if those terms were construed or interpreted in their broadest sense, there could be a chilling effect on employees engaged in the exercise of their Section 7 rights under the NLRA.
In Professional Electric Contractors of Connecticut, Inc., an ALJ invalidated a handbook rule prohibiting initiation or participation in the distribution of chain letters, or sending communications or posting information, on or off duty, or using personal computers in any manner that adversely affected company business interests or reputation. Again, the ALJ found that the rule was overly broad and not carefully drafted to remove unlawful restrictions.
A more complex case involved a Facebook discussion between two employees. In Triple Play Sports Bar and Grille, employees were critical of the employer's failure to withhold the proper amount of state income tax from their paychecks. Both employees were terminated by the company. The NLRB rejected the company argument that the employees used profane language criticizing one of the owners. The Board concluded that the remarks were not maliciously untrue and that what the employees were really doing was seeking mutual aid and protection in voicing concerns about terms and conditions of employment in the hope that they would be addressed by the company. The Board found the comments were not designed to disparage company product or services, or to undermine the company's reputation. The Board also considered the company's “Internet/Blogging” policy, which discouraged online communications involving confidential or proprietary information. It also discouraged inappropriate discussions about the company, management, or co-workers. The policy did contain some limiting language that it was not intended to override applicable state or federal law. However, the Board found that language to be ineffective in light of the broad language of the policy, which employees could reasonably understand as prohibiting discussions about their terms and conditions of employment.
From these cases we have learned steps that employers can take to draft social media policies that are acceptable to the NLRB, including the following:
- Be specific. Ensure that your policy specifically delineates which posts are prohibited. The Board will probably accept limitations or prohibitions on communications that could violate the law, such as securities or financial disclosure laws; maliciously false statements about the company; or communications that violate laws against harassment, bullying, discrimination, or retaliation. Vague or overly broad statements are likely to be struck down.
Require employees to identify themselves as such when creating a link relevant to the company, and prohibit employees from representing themselves as company spokespersons.
Give examples. Describe which communications are allowed, and make clear that the policy is not intended to interfere with employee rights recognized under the law.