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Common Sense Does Not Necessarily Govern Social Media Rules

posted Nov 8, 2012, 10:02 AM by Christopher Vrountas   [ updated Jan 14, 2013, 12:22 PM by Adam Chandler ]

All employers, whether their workforce is unionized or not, need to know about the developments at the National Labor Relations Board (“NLRB”) regarding its developing rules concerning social media policies in the work place.  On May 30, 2012, the NLRB issued a memorandum regarding social media policies in the workplace, which provides numerous examples of employer policies that the NLRB contends violate the National Labor Relations Act (“NLRA”).  Since then, the NLRB has ruled on two cases which have created serious risk for employers who have propounded social media policies with the legitimate motivation of protecting proprietary information and maintaining a healthy workplace environment.  One outvoted judge expressed concern that the current rules as applied lack common sense.  Regardless, employers fail to learn and follow the new rules at their peril.

The NLRA

The NLRA, section 7, grants workers the right to form, join, or assist labor organizations. The statute protects concerted activities for the purpose of collective bargaining or other mutual aid or protection. To that end, the statute outlaws discipline against employees who complain about working conditions including wages, hours, or the work environment generally, even if there is no labor union in the workplace.  Such complaints can be raised in social media, even outside of work.

The Memorandum

The NLRB’s Memorandum states the general rule to be applied when assessing the lawfulness of employer social media polices under the NLRA.  Specifically, the Memorandum explains that a work rule (including a social media policy) is unlawful under Section 8(a)(1) of the NLRA if it “would reasonably tend to chill employees in the exercise of their Section 7 rights.”  The Memorandum describes a “two step” inquiry to determine the lawfulness of a work rule:

1)    Does the rule explicitly restrict Section 7 activities? (if yes, the rule is unlawful); or

2)    Even if the rule does not explicitly restrict Section 7 activities, does the rule nevertheless

a.     Can the rule be reasonably construed the language to prohibit Section 7 activities?

b.    Was the rule promulgated in response to union activity? Or

c.     Has the rule been applied to restrict the exercise of Section 7 rights?

Generally, ambiguous rules are unlawful if they contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights.  By contrast, rules that clarify and restrict the scope by including examples of clearly unprotected or illegal conduct would not be unlawful.  

While the above may seem reasonable on its face, the application of the NLRB’s rules may surprise employers.  For example, the NLRB pronounced that a policy requiring employees not to “release confidential guest, team member, or company information” was unlawful because such policy, according to the NLRB might be construed as preventing employees from disclosing their own information or from disclosing the terms and conditions of fellow employees. 

The NLRB also proscribed a policy that admonished employees to “watch what you say” so as to avoid disclosing confidential information, requiring employees not to discuss such information in the break room or even at home.  Again, because “confidential information” could potentially be construed as including pay rates or work conditions, the NLRB ruled this policy to be unlawful as written.

Surprisingly, the NLRB outlawed a work place rule that prohibited “offensive, demeaning, abusive or inappropriate” conduct, and that admonished workers, “don’t pick fights.”  According to the NLRB, such policies could be construed as prohibiting the “robust discussion” that typically arises when unionization issues arise. 

The NLRB even purported to ban policies that encouraged employees to seek at least initially to resolve disputes directly with their managers and co-workers.  Oddly, a number of state human rights commissions suggest the precise opposite in their proposed anti-harassment policies.  The NLRB also purported to ban policies that restrict the posting of negative and disparaging opinions by employees of their employers, even when the policy explicitly stated that it did not cover Section 7 communications.   Again, such policies in the view of the NLRB were ambiguous enough to supposedly allow them to be reasonably construed to prohibit Section 7 activities.

The Cases

On Sept. 7, 2012 the NLRB issued its first decision on a social-media policy, finding that Costco’s social-media policy violated Section 8(a)(1) of the NLRA by inhibiting employees from exercising their rights under Act.

Costco had a policy that said, among other things, that statements posted on line that “damage the Company, defame any individual or damage any person’s reputation” could subject the employee posting such statements to discipline, including termination. The NLRB held that the rule, though not explicitly prohibiting Section 7 activity, “clearly encompasses concerted communications protesting [Costco’s] treatment of its employees” and, therefore, employees “would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of the [Costco] or its agents).” The NLRB also noted that the rule did not contain examples of prohibited conduct that was not protected activity or otherwise put the rule in context, and that nothing in the rule excluded protected activity from its broad prohibitions. Thus, the NLRB found that  the work place rule presented a “reasonable tendency to inhibit employees’ protected activity and, as such, violates Section 8(a)(1)”. The Costco case can be found here.

On September 28, 2012, the NLRB found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected.

The salesman maintained that he was fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation, the regional office issued a complaint.  The Administrative Law Judge agreed that such comments could have been construed as protected activity because the complaint about the alleged cheap marketing arguably concerned the image of the employees and concerned the likelihood of low commissions because of the supposed ineffectiveness of company management.

The Land Rover posting was something completely different. In that situation, the salesperson wrote about how a customer’s 13-year-old son sat behind the wheel of a Land Rover following a test drive, and how the boy played with the gas pedal, caused the car to lurch forward, jump a wall and plunge into a pond. The salesman posted photos of the accident with sarcastic commentary, including: “OOPS”.

An individual’s actions can be protected under the NLRA if they are undertaken on behalf of a group and if they concern the terms and conditions of employment. But the post regarding the Land Rover accident, according to the NLRB’s view, was “so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.

However, the three-member panel differed in its opinions of the employer’s “Courtesy” rule which read as follows: 

(b) Courtesy: Courtesy is the responsibility of every

employee. Everyone is expected to be courteous, polite

and friendly to our customers, vendors and suppliers, as

well as to their fellow employees. No one should be

disrespectful or use profanity or any other language

which injures the image or reputation of the Dealership.

Two of the three members of the NLRB found the language of the rule to be unlawful because employees could reasonably believe that the rule prohibits statements of protest or criticism, even those protected by the NLRA. One dissenting member found, however, that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks.

The Upshot

Be careful and don’t assume common sense applies.  Obviously, policies should not be calculated to restrict protected activities under Section 7 of the NLRB.  But neutral policies calculated to protect legitimate interests, even if neutrally stated, should contain examples of the kinds of conduct sought to be restricted so that it can be clear from the context that the employer does not seek to inhibit protected activity.  Mere “savings clauses” that state that work place rules are not intended to restrict protected activity are not enough.  The NLRB will apparently resolve any ambiguity against the employer to be sure to remove all doubt, and employers should draft their policies accordingly. 

The Author

Christopher T. Vrountas is the president of Vrountas, Ayer & Chandler, P.C., a law firm with substantial experience representing restaurants throughout New England.  The firm has offices in Manchester and Boston, and serves local and national restaurant clients across the country in litigation and commercial matters of all sorts.  Its members have a combined 45 years of experience. They formed the firm after serving as the senior members of the Food and Hospitality Group and the Employment Group at a major New Hampshire firm for nearly 10 years. 

 

Mr. Vrountas has been in law practice for over 20 years and has substantial experience in matters affecting the restaurant business including employment discrimination and wage claims, covenants not to compete, intellectual property matters, menu labeling, food safety, leasing issues and other business disputes.  He has appeared before various state civil rights commissions as well as the EEOC, the U. S. Department of Labor as well as the departments of labor of several states across the country.  He has tried employment and commercial matters on behalf of businesses in both state and federal courts in a number of jurisdictions.  Chris is a frequent speaker on legal issues and has been the preferred provider of legal services to the members of the New Hampshire Lodging and Restaurant Association for the last two years.  He is a member of the Academy of Hospitality Industry Attorneys and will be speaking on Wage and Hour Class Actions at its fall convention in Orlando, Florida on November 2, 2012. He can be reached at cvrountas@vaclegal.com or at 617.893.9601. 

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