The NLRB has been active in its continued attempts to establish rules for both unionized and non-unionized employers regarding "concerted activity" in the digital age. This includes guidance and attacks on social medial policies and rulings relating to company emails. Below is a digest of some of the most recent NLRB cases on this issue.
Purple Communications, Inc., 361
NLRB No. 43 (2014), the NLRB
has ruled that “employee use of email for statutorily protected communications
on nonworking time must presumptively be permitted” by employers that provide
employees with access to email at work. While the majority in Purple Communications characterized
the decision as “carefully limited,” in reality, it appears to be a major game
changer. This decision applies to all employers, not only those that have
union-represented employees or that are in the midst of union organizing
campaigns. The NLRB reasoned that:
By focusing too much on
employers' property rights and too little on the importance of email as a means
of workplace communication, the Board (in its earlier ruling) failed to
adequately protect employees' rights...and abdicated its responsibility ‘to
adapt the Act to the changing patterns of industrial life.’
NRLB GC Guidance Memorandum, GC
15-04, March 18, 2015, Concerning Employer Rules.
This GC memo relates to numerous Employee Handbook rules. Highlights of the GC position as it relates
to electronic and social media polices are as follows:
Unlawful confidentiality rules: Any blanket bans on employee information outside
of work, bans on publishing confidential information without limiting language,
or any other ban that is broad enough that it might include employee wages,
benefits, or terms and conditions of employment. The GC does give examples of “lawful confidentiality
rules” that are specific enough to not encompass terms and conditions of
employment, such as “Misuse or unauthorized disclosure of confidential
information not otherwise available to persons or firms outside employer is
cause for disciplinary action, including termination.”
Rules regarding conduct toward supervisors: The GC provides examples of language that
is inappropriate under Section 7 regarding employee rights to criticize or
protest employer labor policies or treatment of employees. The GC did state that policies requiring
employees to be respectful to customers, without mentioning management, would
not violation Section 7. Likewise, rules
requiring employees to cooperate with each other and management in the
performance of their work would not implicate Section 7 rights. These policies also could extend to social
media behavior.
Rules regulating conduct toward fellow
employees: The NLRB will ban internet or social media
policies that it feels prevent employees from debating with each other about
unions, management, and the terms and conditions of employment. For instance, the GC found a policy unlawful
that stated “[d]on’t pick fights” online.
The GC did find that anti-harassment policies were lawful. For instance, a policy was acceptable that
prevented “harassment of employees, patients or facility visitors.” Likewise, an employer can ban “use of racial
slurs, derogatory comments, or insults.”
Policies regarding interaction with third
parties: Any policy that
could be construed as banning an employee’s right to communicate with news
media, government agencies, or other third parties about wages, benefits, or
other terms and conditions of employment will be found unlawful by the
NLRB. Policies will be lawful if they
clarify that the employee cannot speak on behalf of the company but that the
employees can speak to outsiders on behalf of themselves.
Unlawful rules regarding logos and
trademarks: The NLRB claims employees have fair use to
use company intellectual property in support of concerted activity. For instance, the NLRB has found unlawful a
policy preventing use of “any Company logos, trademarks, graphics, or
advertising materials” in social media.
Wendy’s Social Media Policy: The GC memo contains a discussion of its
settlement with Wendy’s International LLC.
The company social medial policy required anyone commenting about
Wendy’s on social media to obtain advance approval from his or her
supervisor. This was found to be overly
broad and could prevent employee’s from discussing protected activities.
Wendy’s also banned posting photographs taken at company property. The NLRB found this could violate the NLRA
because pictures of, for instance, employee’s picketing would be lawful.
Another Wendy’s policy prevented the creation of a blog or online group
“related to your job” without approval from the company. Because employees have the right to discuss
the terms and conditions of employment online, this policy was unlawful.
The Wendy’s anti-disparagement policy was also found unlawful. The offending provisions stated: [d]o not
harass, threaten, libel, malign, defame, or disparage fellow professionals,
employees, clients, competitors, or anyone else. Do not make personal insults, use obscenities
or engage in any conduct that would be unacceptable in a professional
environment.”
Pier Sixty,
LLC 362 NLRB 59
(2015), a March 31, 2015 (post GC Memorandum) decision where the NLRB found
that language of the most offensive degree was not “so egregious as to exceed
the Act’s protection.” Id.
at *3. Two days before a union election,
a frustrated employee on break posted of his supervisor on Facebook:
Bob is such a NASTY MOTHER
F***** don’t know how to talk to people??? F*** his mother and his entire
f****** family?? What a LOSER?? Vote YES for the UNION???!!
The NLRB applied, what the dissenting
panel member described as the “Atlantic Steel test on steroids” of (i) the
place of the discussion, (ii) the discussion’s subject matter, (iii) the nature
of the employee’s outburst, and (iv) whether the employer provoked the
outburst, the Board also cobbled together “totality of the circumstances”
factors from previous Board cases in considering (i) employer’s antiunion
hostility, (ii) whether employee was impulsive or deliberate, (iii) whether the
employer considered language similar to that used by employee to be offensive,
(iv) whether the employer maintained a specific rule prohibiting the language at
issue, and (v) whether the discipline imposed upon employee was typical of that
imposed for similar violations or disproportionate to his offense.
The employee was reinstated from his termination as
the NLRB found his post was protected concerted activity.
Boch
Imports, Inc., 362 NLRB No. 83 (April
30, 2015). The NLRB found the company’s
social media policy overly broad. The handbook rule required employees to: (1) identify
themselves whenever they posted comments about the employer, the employer’s
business, or a policy issue, and (2) prohibited employees from using the
employer’s logo “in any manner.” In finding this policy unlawful, the NLRB
reasoned that the self-identification requirement could cover comments about
the terms and conditions of employment, and the requirement to self-identify
would reasonably interfere with employees' protected activities on social
media. The NLRB took issue with the restriction on using the employer’s logo
“in any manner.” This, the Board reasoned, could cover protected employee
communications, such as an employee engaging in union activity while wearing a
uniform bearing the company logo.
In Macy’s Inc., 01-CA-123640 (May 12, 2015), an administrative law judge found that Macy’s maintained an unlawful employee handbook that contained overbroad confidential information policies. Macy’s policies prohibited employees from divulging “the personal information of the Company’s employees and customers,” “information about employees ... which if known outside the Company could harm the Company or its . . . employees,” “confidential information,” “information such as names, home and office contact information,” “any information that is not generally available to the public that relates to the Company or the Company’s . . . employees,” and “personally-identifiable information (Personal Data) ... [which] includes names, home and office contact information.” The ALJ found that these provisions unlawfully restrict employees from discussing the terms and conditions of their employment.
Macy’s handbook included a “savings clause” stating
that nothing in the handbook was intended to limit employees from engaging in
their rights protected by the Act, including protected concerted activities. The
ALJ, howver, found that this “savings clause” was insufficient and written in a
“generic” manner, whereas the prohibitions on employee conduct were very
specific.
Rocky
Mountain Eye Center, P.C., 19-CA-134567 (May
6, 2015). An administrative law judge
found that the company violated the NLRA by terminating an employee based on an
unlawful confidentiality provision. That policy stated that “information about
physicians, other employees, and the internal affairs of [the employer] are
considered confidential . . . Breach of either patient or facility
confidentiality is considered gross misconduct and may lead to immediate
dismissal.” An employee accessed a database that included contact information
for both the employer’s patients and employees and provided the employee
contact information to a union organizer. The ALJ held that the confidentiality
policy unlawfully restricted protected activity and was applied to restrict the
employee’s right to share information about other employees with the union. The
judge went on to further conclude that the employer violated the Act by
terminating the employee for engaging in protected concerted activity.
In Landry’s Inc. (Bubba Gump Shrimp
Co.), 362 NLRB No. 69 (April
16, 2015), the NLRB found that a social medial policy was permissible. The
employee claimed termination based on making protected negative statements in
social media about the employer. The employer’s social media 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.
The judge noted that the “cautionary language”
in the first sentence could act to inhibit employees from exercising their
Section 7 rights. But the judge went on to conclude that when read in
conjunction with the second sentence, the policy was sufficiently narrowly
tailored to the “manner and tone” with which employees discuss the terms and
conditions of their jobs, and “not the content.” The judge concluded that the
employer did not violate the Act.
