As promised a month ago, this post focuses on recent analysis from the General Counsel of the National Labor Relations Board (“NLRB”) regarding employer policies, including social media 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
On September 4, 2014, my post titled “Employers Will Not ‘Like’ This!” 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.