Most employee handbooks contain some language limiting employees’ ability to share information. These common practices are coming under fire, however, in developing National Labor Relations Act (NLRA) guidance. Standard provisions to beware of include:
•Prohibiting NLRA covered employees from disclosing wages or other compensation to other employees or third parties.
•Prohibiting NLRA covered employees from using disparaging language that injures the reputation of the employer or its employees.
•Requiring NLRA covered employees to obtain prior authorization from the company before speaking with the media about the company.
The NLRA confers rights on unionized and non-unionized non-management employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Under National Labor Relations Board (NLRB) precedent, employers’ policies are being challenged if employees would reasonably construe the language to prohibit concerted activity — in other words, if the policy language would reasonably tend to chill employees in the exercise of their right to engage in concerted activity.
The NLRB is taking an increasingly broad view of concerted activity and a corresponding restricted view of employer policies that could be construed as limiting or prohibiting employee communications or activities, even if those policies do not relate to attempts to unionize.
Acting GC’s Report
On May 30, 2012, the NLRB’s acting general counsel, Lafe E. Solomon, issued an updated report regarding potential legal issues implicated by employers’ social media policies and other policies that may restrict employee communications. The report highlighted potentially problematic language in employer policies including:
•Prohibiting online employee posts regarding non-public information, confidential information, and legal matters of the employer (if the meanings of these terms are not further clarified).
•Prohibiting employees from harming the image of the company or making statements that are disparaging to the employer.
•Prohibiting employees from making offensive, demeaning or inappropriate remarks.
•Instructing employees to use a friendly tone and not engage in inflammatory discussions.
•Discouraging employees from “friending” co-workers.
•Prohibiting discussions of dissatisfaction.
•Encouraging employees to solve work problems in the workplace rather than airing such problems online.
In a positive development for employers, the report identified an employer policy found lawful in its entirety by the NLRB. In doing so, the report noted that, for example, while a policy commanding employees to be respectful and “fair and courteous” in the “posting of comments, complaints, photographs, or videos” could be overly broad and unlawful, a policy containing the same language with additional guidance that employees not post items that could “be viewed as malicious, obscene, threatening or intimidating” or “contribute to a hostile work environment on the basis of any status protected by law or company policy” would be lawful. The report cautioned that any ambiguities in a policy will be construed against the employer.
Developing Case Law
In EchoStar Technologies LLC, No. 27-CA-066726 (9/20/12), the NLRB recently held that an employer’s social media policy prohibiting “disparaging” comments about the company violated the NLRA. The NLRB administrative law judge rejected the employer’s argument that a general carve out stating that “should a conflict arise between an EchoStar policy and the law, the appropriate law shall be applied and interpreted so as to make the policy lawful in that particular jurisdiction” was enough to save the policy. The judge also took issue with the company’s policy regarding employee contact with the media, finding the policy was overbroad and violative of the NLRA because it constituted a blanket prohibition on unauthorized contact with the press.
The judge further held that the company’s policy stating that employees were “expected to maintain confidentiality” related to internal investigations violated the NLRA because the company must consider the necessity of such an instruction in the context of each investigation. Under National Labor Relations Board precedent, the employer must determine whether there is a risk of the investigation being corrupted absent such an instruction, due to witnesses needing protection, evidence being destroyed, or testimony being fabricated. Notably, in Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012), the NLRB ruled that an employer’s mere suggestion, as opposed to a mandate, to employees that they not speak to others regarding an internal investigation could chill Section 7 rights. In light of Banner and EchoStar, employers who automatically counsel employees interviewed during investigations that the conversation should remain confidential, or who have policies reflecting this approach, must consider the potential risks under the NLRA.
On Sept. 28, 2012, the National Labor Relations Board issued its first ruling involving an employee who was “Facebook-fired.” In Karl Knauz Motors Inc., No. 13-CA-046452, the board adopted an administrative law judge’s prior holding that the reason for the firing was related to a posting on the social media site about an accident at another dealership owned by his employer. Because the posting did not involve the terms and conditions of any employee’s employment and the plaintiff had not discussed posting it with any other employee of the employer, the board held it was “obviously” not concerted activity.
What the NLRB left unanswered, however, was whether the employee’s other posts involving sarcastic commentary about the food served at a marketing event constituted protected activity. The board did not reach this issue because it found that the termination was based solely on the postings related to the accident. Given the NLRB’s increasing focus on Facebook postings and other social media activity, employers should expect to see decisions that further outline the board’s position on these issues.
The NLRB also affirmed the administrative law judge’s ruling that the employer’s policy regarding “courtesy,” which stated in part “[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership,” was unlawful. The board held that the prohibition of “disrespectful” conduct was overbroad and could be construed by employees to limit protected activity.
This series of decisions and guidance over only a few short months involving employer policies and employee communications reflects the NLRB’s increasing focus on this issue. While more decisions are certain to follow, in the interim employers should take away some general principles to apply to their employment policies. Employers should:
•Prohibit obscene, but not disparaging or derogatory, language about the company or its employees.
•Include specific examples of prohibited conduct in a policy, so it will be more difficult for the NLRB to argue that employees reasonably construed the policy as prohibiting or limiting concerted activity.
•Avoid vague or unidentified terms within policies, as any ambiguities will be construed against the employer. The board noted in the EchoStar decision that an employee should not have to consult a dictionary to understand an employer’s rules.
•Use caution in relying on separate savings clauses or disclaimers in handbooks in an attempt to avoid violating the NLRA. Such clauses may not be found to save an otherwise unlawful policy and the Acting General Counsel has specifically taken this position. •