Employers, how often is your company’s Employee Handbook updated? How often are your employee conduct and social media policies reviewed for compliance with the law? At the very least, hopefully these policies and documents are reviewed and updated annually. Once a year, however, may no longer be frequent enough. The National Labor Relations Board (NLRB) continues to issue decisions and to provide guidance that employers should review and understand to reduce the risk of being caught with unlawful policies.
Is the NLRB Important To My Business?
YES, absolutely – even if your company does not have a union. By now, I have written over 40 posts here at Maximize Social Business, and a large number of those have referenced the NLRB. This is so because a few years ago the NLRB, somewhat surprisingly, has been at the forefront and the most active government agency to focus on employee conduct and social media in the workplace. This is true whether an employer is unionized or union-free. For a more complete post regarding, and for a deeper understanding of, the NLRB and the National Labor Relations Act (NLRA), please review this post titled “Employers: Don’t Ignore These Two Acronyms For Social Media Policy Compliance”.
A Recent Employer-Friendly NLRB Decision
Typically, the NLRB, particularly with its current membership, has issued decisions adverse to employers by finding that seemingly reasonable actions and policies are, in the NLRB’s opinion, violations of the NLRA. For example, see the Pier Sixty, LLC and Hernan Perez and Evelyn Gonzalez case where the NLRB said the employer violated the law when it terminated an employee for posting the following (among other things) on social media: “Bob is such a NASTY MOTHER F____R don’t know how to talk to people!!!!!! F__k his mother and his entire f____ing family!!!!”
Surprisingly, however, in April 2015, the NLRB affirmed a decision that found an employer’s social media policy was lawful, contrary to the arguments made by the NLRB’s General Counsel. In an NLRB case involving Landry’s Inc and its subsidiary Bubba Gump Shrimp Co. Restaurants, Inc., an Administrative Law Judge evaluated whether the following portion of the company’s social media policy violated the NLRA:
“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.”
Lately, the NLRB has routinely struck down such policies because they tend to stifle employee rights to discuss workplace issues. In this case, however, the Administrative Law Judge found that the policy was lawful since it focused on “morale issues,” and “civility”, and did not focus on the content of employee posts to social media. As the Judge wrote: “[i]t is not the job-related subject matter of the postings that are of concern to the [company], but rather the manner in which the subject matter is articulated and debated among the employees.” The Judge continued by noting that “[f]orethought and civility in the exercise of protected concerted or union activity are not mutually exclusive concepts.” And, the Judge summarized that under Landry’s social media policy, employees “are being urged to be civil with others in posting job-related material and discussing on social media sites their grievances and disagreements with the [company] or each other regarding job-related matters.”
Why This NLRB Decision Was So Unexpected
The Landry’s decision was good news for the company of 50,000 employees, and other businesses looking to refine social media policies to comply with NLRB standards. The outcome of this case was unexpected because the NLRB has been very pro-employee and has found unlawful most company social media policies in the last several years.
For example, the NLRB found the following social media policy to be unlawful: “Refrain from commenting on the company’s business, financial performance, strategies, clients, policies, employees or competitors in any social media, without the advance approval of your supervisor, Human Resources and Communications Departments.”
And, the following seemingly reasonable policies were also determined to violate employee rights under the NLRA:
“[You may not m]ake false or misleading representations about your credentials or your work.”
“You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of law or lawful Company policy).”
“[B]e respectful to the company, other employees, customers, partners and competitors.”
“[D]on’t pick fights online.”
“Do not make ‘insulting, embarrassing, hurtful or abusive comments about other company employees online,’ and ‘avoid the use of offensive, derogatory, or prejudicial comments.”
The General Counsel of the NLRB analyzed the above unlawful policies. Before getting there, an important decision from a the United States Court of Appeals for the Second Circuit deserves some attention.
Update Regarding Facebook “Likes” And Comments Leading To Job Termination
In a blog post on September 4, 2014, I discussed a case involving Triple Play Sports Bar and Grille (“Triple Play”). In this case, the NLRB determined that Facebook posts and “Likes” were protected activities and that employees were terminated from employment in violation of Section 7 of the National Labor Relations Act (“NLRA”). (For a more complete description of the case, please read my September 4, 2014 post).
On October 21, 2015, the Second Circuit Court of Appeals confirmed that “Likes” and comments can be protected activity under the law. Triple Play argued that the comments lost any legal protection because they were available to be seen by the public, and because they contained offensive language/obscenities. The court disagreed here, and ruled that even if the comments were obscene, that alone does not deprive employees of protection under the NLRA. The court also confirmed that Triple Play’s Internet/Blogging Policy violated the NLRA as well. Follow this link for the complete analysis of Triple Play’s case against the NLRB.
Some Takeaways From Triple Play
First, the Second Circuit refused to officially publish its decision. As a result, the court’s decision cannot be used as binding authority/law. In any event, employers should review the court’s analysis and understand the risks, and parameters, and at least one court’s opinion, of employee use of social media and an employer’s ability to terminate employees.
Second, Facebook “Likes” can rise to the level of protected activity. Employers should use caution when taking action against employees in response to the employees simply clicking the “Like” icon.
Third, employee use of obscenities alone may not preclude protection under the NLRA.
Fourth, employers should refine social media and other policies and closely scrutinize “subjective” policies and phrases that could be construed to restrict employee protected activities.
Guidance From the NLRB’s General Counsel
Listed at the end of “Employers: Guidance to Refine Social Media Policies, Part 1“, were several seemingly reasonable employer policies that the General Counsel of the NLRB has determined to be unlawful.
- “[You may not m]ake false or misleading representations about your credentials or your work.”
- “[B]e respectful to the company, other employees, customers, partners and competitors.”
- “[D]on’t pick fights online.”
- “Do not make ‘insulting, embarrassing, hurtful or abusive comments about other company employees online,’ and ‘avoid the use of offensive, derogatory, or prejudicial comments.”
The General Counsel found these policies to be unlawful because they potentially stifle an employee’s ability to engage in protected concerted activity. Let’s take a closer look at why such provisions run afoul of the NLRA (in the General Counsel’s opinion).
Rules Restricting Publishing Confidential Information
The General Counsel explains that employees have a “Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees…. Thus, an employer’s confidentiality policy that either specifically prohibits employee discussions of terms and conditions of employment—such as wages, hours, or workplace complaints—or that employees would reasonably understand to prohibit such discussions, violates the Act. Similarly, a confidentiality rule that broadly encompasses “employee” or “personnel” information, without further clarification, will reasonably be construed by employees to restrict Section 7-protected communications.”
Conversely, “broad prohibitions on disclosing ‘confidential’ information are lawful so long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment, because employers have a substantial and legitimate interest in maintaining the privacy of certain business information.”
So, what does this mean? Below are examples of unlawful and lawful policies on maintaining confidentiality, according to the General Counsel:
- You must not disclose proprietary or confidential information about [the Employer, or] other associates (if the proprietary or confidential information relating to [the Employer’s] associates was obtained in violation of law or lawful Company policy). – UNLAWFUL
- Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.. .. Do not discuss work matters in public places. – UNLAWFUL
- “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customer. – LAWFUL
- Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination. – LAWFUL
The “lawful” policies are ones, according to the General Counsel, that: 1) “do not reference information regarding employees or employee terms and conditions of employment, 2) although they use the general term ‘confidential,’ they do not define it in an overbroad manner, and 3) they do not otherwise contain language that would reasonably be construed to prohibit Section 7 communications.”
After examining one-off policies like the above for about 20 pages, the General Counsel then focused on many of the Employee Handbook rules of Wendy’s International LLC. The General Counsel found that much of Wendy’s policies were unlawfully broad, and the General Counsel explains how it reached this conclusion. Wendy’s Social Media policy was found unlawful because “it generally prohibited an employee from commenting about the Company’s business, policies, or employees without authorization, particularly when it might reflect negatively on the Company. Accordingly, we found that this part of the rule was overly broad. We also concluded that the rule’s instruction that employees should follow the Company’s internal complaint mechanism to “make a complaint or report a complaint” chilled employees’ Section 7 right to communicate employment-related complaints to persons and entities other than Wendy’s.”
Some other components of Wendy’s policy found to be unlawful include:
- [You may not e]mail, post, comment or blog anonymously. You may think it is anonymous, but it is most likely traceable to you and the Company.
- [You may not m]ake false or misleading representations about your credentials or your work.
- [You may not c]reate a blog or online group related to your job without the advance approval of the Legal and Communications.
Each of these were found to be overly-broad and could reasonably be construed to stifle/discourage employees from exercising rights to discuss working conditions.
Anyone involved with compliance, human resources, employee advocacy, and employment law should review the entire memo published by the General Counsel of the NLRB, dated March 18, 2015. Frankly, it would be dangerous and reckless to ignore over downplay the legal considerations of employee advocacy, social media policies, and employee conduct via social media.
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation. No attorney-client relationship is created via this website.