Articles Posted in National Labor Relations Board

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In early November, an administrative law judge of the National Labor Relations Board dismissed a complaint filed against an employer, finding that the employer did not violate the National Labor Relations Act by withdrawing rehire offers from two employees’ based on their Facebook conversation.

The two employees worked for a non-profit corporation’s teen center.  Shortly after the employees were issued rehire letters, they had a Facebook conversation regarding their work at the teen center.  The conversation included a large amount of profanity as well as statements that the employees would not ask permission to engage in certain activities; would do whatever they wanted with the center’s funds; and would generally “raise hell.”
Another employee saw the conversation and sent screenshots to the director of the teen center.  Letters rescinding the rehire offers were sent to the employees, citing concerns that they would not follow directions and could endanger the children at the teen center.

As in many recent cases, the administrative law judge found that the employees were engaged in “concerted activity” when expressing disagreement with management’s running of the teen center.  The judge noted that the Facebook conversation included discussion of (1) how the employees were treated, (2) the employer’s failure to respond to certain employee concerns, and (3) the one employee’s demotion.

However,
not every instance of concerted activity is protected.  The judge found that the employer could reasonably and lawfully conclude that the employees’
actions were not protected.  The judge noted the employer’s arguments (1)
that its funding from the government and donors could be impacted by the comments, and (2) that the safety of youth served by the teen center could be jeopardized.

While not every social media-related firing may be unlawful, employers should still be aware of the NLRB’s crackdown on social media policies.

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social-media-work.jpgAs use of social media continues to increase, so do concerns by employers regarding employee use of social media as it relates to the workplace. In response, many employers are drafting new or revised policies covering use of social media particularly as it pertains to confidentiality, privacy, intellectual property, and contact with the media and government agencies.

The Acting General Counsel of the National Labor Relations Board (“NLRB”), Lafe Solomon, has released a report on employer social media policies.  In many cases, some or all provisions of employers’ policies governing the use of social media by employees have been found to be unlawful. Provisions are found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act. Consider the following examples, which may be surprising.

In one case, the NLRB addressed an employer’s rules on communication of confidential information via social media.  The employer’s social media policy provided in relevant part:

If you enjoy blogging or using online social networking sites such as Facebook and YouTube, (otherwise known as Consumer Generated Media, or CGM) please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles . . . Don’t release confidential guest, team member or company information. . . .

The NLRB concluded these rules were unlawful as they could chill the exercise of Section 7 rights (e.g., self-organization, collective bargaining, etc.) in violation of the National Labor Relations Act. More specifically, the instruction that employees not “release confidential guest, team member or company information” was interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment as well as the conditions of employment of employees other than themselves.

In another case, the NLRB focused on an employer’s social medial policy for protecting company information, which provided in relevant part:

Employees are prohibited from posting information regarding [Employer] on any social networking sites (including, but not limited to, Yahoo finance, Google finance, Facebook, Twitter, LinkedIn, MySpace, LiveJournal and YouTube), in any personal or group blog, or in any online bulletin boards, chat rooms, forum, or blogs (collectively, ‘Personal Electronic Communications’), that could be deemed material nonpublic information or any information that is considered confidential or proprietary. Such information includes, but is not limited to, company performance, contracts, customer wins or losses, customer plans, maintenance, shutdowns, work stoppages, cost increases, customer news or business related travel plans or schedules. Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers. . . .

The rule prohibiting employees from posting information regarding the employer that could be deemed “material non-public information” or “confidential or proprietary” was found unlawful by the NLRB. This was chiefly due to the terms “material non-public information” and “confidential or proprietary” being vague and/or overbroad, and the associated risk of limiting Section 7 rights.

Some other trends in the guidance provided by the NLRB include that expression of opinions by employees is largely protected, and prohibitions on activities in social media used by unions for communication or organization are particularly safeguarded.  On the other hand, the guidance appears to enable employers to protect themselves against “rants” by individual employees, and to enforce important workplace policies (like sexual harassment, workplace violence, and/or other workplace policies) in employee use of social media.

As can be seen from the examples above, employers should work with counsel to carefully craft their social media policies to both protect their own interests while not impeding employee rights under the National Labor Relations Act.

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In a series of important rulings, the National Labor Relations Board (“NLRB”) has provided guidance regarding the extent to which private employers may regulate aspects of an employee’s social media activities consistent with the National Labor Relations Act (“NLRA”).  The NLRA protects employees’ rights to engage in “concerted activity” for the purpose of collective bargaining, or for other mutual aid or protection, and prohibits employers from interfering with, restraining, or coercing employees who are exercising rights guaranteed under the NLRA. In light of this recent guidance, in addition to recent judicial and legislative developments, it is imperative to have social media policies that clearly define what employees can and cannot do when using social media for both professional and personal purposes. But as the NLRB rulings make clear, a company’s policy must also respect certain employee rights or it may be deemed at least partially unenforceable.

NLRB Rulings

In their first two rulings, the NLRB found that the two at-issue social media policies contained overly broad language regarding the type of social media activity that was regulated by the employer and failed to carve out an exclusion for communications protected under the National Labor Relations Act (“NLRA”).  One policy, in relevant part, stated that employees should be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person’s reputation or violate the policies outlines in company’s employee agreement, may be subject to discipline, up to and including termination of employment. Because the policies could reasonably be construed to prohibit activity protected under Section 7 of the NRLA (e.g., concerted communications) and “would reasonably tend to chill employees” in the exercise of their rights to engage in “concerted activity” as set forth in Section 7 of the NLRA., the policies were deemed unlawful.

In a separate ruling, the NLRB opined that an employee may be terminated for activity that is regulated by an employer’s lawful social media policy, including posting an entry on the employee’s Facebook page.  The at issue Facebook post was not part of any communication with another employee, and it did not have a connection to any of the employee’s terms and conditions of employment.  As such, the NLRB found that the post did not fall under the umbrella of protected activity set forth in the NLRA. 

Recommendations Regarding a Corporate Social Media Policy

The recent NLRB rulings, in addition to recent judicial and legislative developments, highlight the need for companies to utilize social media policies with clear, narrowly tailored language to demarcate the boundary between acceptable and unacceptable use of social media forums.  When constructing a social media policy, it is also important to balance numerous factors including, for example, protecting concerted employee activity under the NLRA, applying anti-violence, harassment and discrimination policies, protecting company confidential information, and avoiding undue responsibility for an employee’s own statements.    

Employers are encouraged to explicitly set forth exceptions in their social media policies for activities protected under the NLRA.  These exceptions may be included directly in a social media policy or in another employee communication in which the policy is included or incorporated by reference (e.g., an employee handbook). 

Further, prohibiting an overly broad range of activities in a social media policy may raise red flags with the NLRB.  Examples of such broad activity include “talking badly” about an employer, posting information that “damages” or “disparages” the employer, disclosing “inappropriate” information about an employer, etc.  It is currently unclear if an explicit exception for protected activity may allow for broader employer regulation of social media activity.  Even when including an explicit exception for protected activity, employers should still aim to avoid such broad language and provide examples in their policies to give context to what kinds of social media activity fall under a company social media policy.  

Employers are also encouraged to apply anti-violence, harassment, and discrimination policies to social media activity via their social media policies.  A thorough social media policy should include confidentiality and proprietary information restrictions as well.  Further, social media policies should require employees to state that their opinions are their own (and not the opinions of their employers) when disclosing their professional identity via social media participation. As mentioned above, these employee regulations may be included directly in a social media policy or in another employee communication in which the policy is included (e.g., an employee handbook).

For a more detailed discussion of the NLRB rulings and best practices, please see our client alert entitled First NLRB Decisions on Social Media Give Employers Cause to Update Policies, Practices posted October 10, 2012. For additional information on recent judicial and legislative developments, please see our client alert entitled Drawing the Line Online: Employers’ Rights to Employees’ Social Media Accounts posted October 16, 2012.

The legal requirements related to employer regulation of employee social media activity are continually changing.  For help drafting a social media policy contact a knowledgeable attorney.