Social media such as Facebook and Twitter is a hot-button issue for employers. Its personal and often immediate nature provides a number of ways for employers and employees to get crosswise. But in-house counsel can help their companies navigate this fast-changing area of the law, even as recent National Labor Relations Board (NLRB) pronouncements are called into question.
As many managers unfortunately are aware, sometimes workers use social media for inappropriate discussion regarding company business or co-workers. They also may use it to misrepresent the company to the outside world. As a result, lawyers have crafted policies on behalf of their companies through which management seeks to restrain social media use. Despite Texas’ at-will employment environment, some of the policies may run afoul of federal regulators.
The NLRB recently has issued a number of decisions restricting employers’ abilities to limit employee communications — electronic or otherwise — even when those communications may damage the company or another employee’s reputation. That leaves businesses stuck between protecting their reputations (and those of their employees) and complying with the National Labor Relations Act (NLRA). Policies that one year ago seemed practical and legal are now problematic. To further complicate matters, a court earlier this year held that the NLRB is not properly constituted, which throws the board’s controversial opinions in doubt.
Two recent cases demonstrate the dilemma employers face.
In Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371, decided last fall, the NLRB found that a policy prohibiting certain employee postings and communications violated NLRA §8.
Section 8 states that it is an "unfair labor practice" for an employer to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7" of the NLRA.
Section 7 gives unionized and nonunionized employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection."
Costco’s manual for its non-union employees included a specific policy prohibiting electronic postings that "damage the Company, defame any individual or damage any person’s reputation." The NLRB’s position is that "employees would reasonably construe this rule as one that prohibits Section 7 activity" and violate employees’ right to "concerted activity."
But, before rewriting the policy manual, it’s important for in-house lawyers to know that there may be a safe harbor in the NLRB findings in Costco.
First, the panel pointed out that Costco’s "broad" prohibition against making statements that damage the company or any person’s reputation "clearly" encompasses concerted communications. But it added that "there is nothing in [Costco's] rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule."
Second, the panel wrote that Costco’s rule "does not present accompanying language that would tend to restrict its application."
Those two statements, taken together, may provide a way for the legal department to protect the reputations of the company and its employees while also not running afoul of the NLRB. If Costco’s language specifically had exempted concerted protected activities, such as communications critical of Costco’s treatment of employees, or had it prohibited only egregious conduct, such as sabotage or sexual harassment, the NLRB may have found the policy narrowly drawn and not in violation of §8.
The Costco decision isn’t the only pronouncement on social media that should concern in-house counsel. Last spring, the NLRB’s Division of Judges found in General Motors LLC and Michael Anthony Henson that a policy prohibiting "offensive, demeaning, abusive or inappropriate remarks" because they "are as out of place online as they are offline" proscribes a broad spectrum of communications that would include protected criticisms of the employer’s labor policies or treatment of employees. According to the opinion, "employees would reasonably read some of this language as prohibiting protected employee communications about terms and conditions of employment, because it expressly prohibits employees from discussing online coworkers’ wages and other compensation, as well as working conditions." Further, "[T]he policy requires that posts be ‘completely accurate’ and ‘not misleading.’ However, the fact that Section 7 communications are false, misleading, or inaccurate does not per se strip them of the Act’s protection."
In the past 18 months, the Office of the General Counsel of the NLRB has issued several Operations-Management Memoranda to provide guidance on this issue. These reports underscore two main points that the NLRB is trying to make.
First, employer policies should not be so sweeping that they prohibit the kinds of activity federal labor law protects, such as employees’ discussion of wages or working conditions. Second, an employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.
Now is a good time for the legal department to take a close look at company policies. In response to Costco, in-house counsel should add a disclaimer protecting concerted activity to the company’s social media policy or any policy that attempts to discourage communications. Also, attorneys must ensure that a policy is not so sweeping that it includes discussion of wages or working conditions.
Adding an element of uncertainty to these developments is a January decision by the D.C. U.S. Circuit Court of Appeals in Noel Canning v. NLRB. The D.C. Circuit found improper President Barack Obama’s recess appointments of three commissioners to the NLRB in 2012. Without these commissioners the NLRB does not have enough members to take legal action.
While, at first blush, Noel Canning seems to invalidate the decisions made by the board in the past year, it is risky for an employer to ignore them. The NLRB chairman articulated the board’s position, which is that the D.C. Circuit’s decision only affects one case, and the board will continue with business as usual. The NLRB announced that it will filea petition for certiorari with the U.S. Supreme Court for review of the Noel Canning opinion. That cert petition is due by April 25.