NLRB guidance on acceptable Social Media policies

National Labor Relations Board Acting General Counsel Lafe Salomon today issued a third report on social medial cases brought before the NRLB. The report details seven cases that came before the Board and identifies which policies the Board found unlawfully overbroad and which lawful. The NLRB rules apply to both union and non-union employers.

Whether a policy is acceptable is a very fact-specific question and the report details the facts that caused the Board to reach its decisions. But here are a few general guidelines gleaned from the report:

  • The key issue is whether the policy “would reasonably tend to chill employees in the exercise of their Section 7 rights.” Rules generally will be deemed unlawful when they are ambiguous and contain no limiting language or context making clear to employees that the rule does not restrict Section 7 rights.
  • Prohibiting disclosure or discussion of “confidential” information is likely overbroad without language or examples to make clear the policy does not apply to discussions of terms and conditions of employment.
  • Prohibiting all posting of the corporate logo is overbroad because it could restrict, for example, an employee posting a photo of picketing employees carrying a sign with a corporate logo.
  • Requiring employees to come forward with questions about whether a post is acceptable is overbroad if the policy arguably covers Section 7 activity because employees cannot be required to ask permission as a precondition to engaging in Section 7 activities.
  • Prohibiting employees from commenting on legal matters is overbroad because it restricts discussion of potential claims against an employer.
  • Although employers can suggest employees resolve disputes through internal methods like talking to managers, employers cannot require employees to use such procedures rather than post their grievances online.
  • Including a “savings clause” stating that the policy will not be construed in a way to restrict Section 7 rights will not cure an otherwise unlawful policy.
  • A policy prohibiting “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” is lawful.

Perhaps the best part of the report is that it includes a policy that the Board found lawful in its entirety. The policy is a helpful example that employers can use when crafting their own policies.

If you would like assistance in drafting a specific policy for your company, we would be happy to help you.

NLRB Advice Memo Concludes Facebook Post Not Unlawful

In another in a series of advice memoranda from the NLRB regarding social media, the NLRB concluded the discharge of a crane operator because of his Facebook did not violate the NLRA because there was no protected concerted activity.  The Advice Memorandum, regarding Helser Industries, is here.

A co-worker of the crane operator informed a supervisor that the operator nearly struck an employee and knocked over a welding machine with a crane.  Angry at being reported and not allowed to go home to “cool off,”  the operator then knocked over two work horses with the crane.  The supervisor yelled at the operator and had to finished the crane work when the operator walked away.

The next day, a non-working day, the operator posted the following statements to his Facebook account:

yeah I got a fucking attitude about where I work today.  a coworker ran into the office when they witnessed me knocking over a welding machine accidentally.  people who pull this stuff irk me greatly.  they don’t have the capacity to mind their own buss

weekends work wonders

if i snap, helser industries will be making national headlines

A coworker posted the following:

Do you need an intervention?  Maybe you need to go see a DR. and get some relief.  You might need some time out.  The bottom line it is only work and all they can do is send you packing.  that won’t happen so take a chill pill.  There are more things to worry about than work.  There is life beyond that place.  Besides time heals all wounds.

Helsel discharged the operator when it learned of his posts.

Associate General Counsel Kearney concluded that the operator’s complaints were an expression of an individual gripe and not protected concerted activity because (a) the posts contained no language suggesting the operator sought to initiate or induce group action and (b) there was no evidence that coworkers interpreted the postings as a call for group action or that any coworkers shared his concerns.

This Memorandum is good news for employers.  As in Lee enterprises, Inc. d/b/a Arizona Daily Star, Rural Metro, and JT’s Porch Saloon & Eatery,  LTD, this case reflects what appears to be the Board’s recognition that social media posts that reference workplace matters do not necessarily constitute protected activity; there still must be evidence the the conduct is concerted.   At the same time, these cases are very fact-intensive and this case easily could have come out differently if the coworker’s post had been worded slightly differently.

All employers (the NLRA protection for concerted activity applies to non-union and union employees) confronted with inappropriate social media posts, tweets, or other activity need to carefully analyze the content and circumstances of the conduct to determine if the activity is concerted and, if it is protected, whether the protection was somehow lost.

New Rule Requires Notice of Rights under the NLRA

Today the NLRB issued its final rule requiring that employers subject to the NLRA post a detailed notice regarding employees’ rights under the Act.  The notice sets out a detailed description of employee rights under the NLRA, consequences for violations of those rights, and how to contact the NLRB regarding questions or violations.  The final rule, which includes a copy of the required notice, can be found here.  The rule includes information from which employers can determine whether they subject to the posting requirements.

Member Hayes dissented over the new rule and the majority’s stated purpose for the rule:

Surely, no one can seriously believe that today’s rule is primarily intended to inform employees of their Section 7 right to refrain from or to oppose organizational activities, collective bargaining, and union representation.  My colleagues seek through promulgation of this rule to reverse the steady downward trend in union density among private sector employees in the nonagricultural American workforce.

Member Hayes also believes the Board lacks authority to promulgate the rule and that the Board’s action is arbitrary and capricious and, therefore, invalid.  He predicts

. . . I am confident that a reviewing court will soon rescue the Board from itself and restore the law to where it was before the sorcerer’s apprentice sent it askew.

But for now, at least, employers subject to the new rule will have to post the notice beginning November 14, 2011.

Here are some highlights of the posting requirement:

  • The notice must be at least 11 inches by 17 inches (or two 8 1/2 x 11 sheets taped together).
  • The notice must be posted in conspicuous places where the notice will be readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted.
  • If an employer customarily communicates with its employees about personnel rules or policies on an intranet or internet site, in addition to the requirement of putting up the actual poster, the employer must also post the notice on the site.  This can be done by downloading and posting the notice or linking to the Board’s website that contains the poster.  If linking, the link must read “Employee Rights under the National Labor Relations Act.”
  • Federal contractors that comply with the Department of Labor’s notice-posting rule regarding rights under the NLRA are deemed in compliance with the NRLB’s rule and do not have to post a second poster.
  • Special rules apply if 20 percent or more of an employer’s workforce are not proficient in English:
  1. If 20 percent or more of an employer’s workforce are not proficient in English but speak the same foreign language, the notice must be posted in that language.
  2. If the employer’s workforce includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the notice must be either posted in those languages or posted in the language of the largest group and provide each employee of the other language groups a copy of the notice in the appropriate language.
  3. Employers can request from the Board a poster in a particular language.  If a poster is not available in that language, employers are not liable for non-compliance until the notice becomes available in that language.

Consequences for failing to comply with the rule include:

  • The Board construes failure to post the notice as a unlawful interference with Section 7 rights in violation of Section 8(a)(1).
  • The Board will customarily order the employer to post the notice and to post a remedial notice.
  • The the 6-month limitations period in which an unfair labor practice charge must be filed will be tolled (unless the employer proves the employee had actual or constructive knowledge of the conduct alleged to be unlawful and that such conduct violated the NLRA, yet failed timely to file a charge).
  • A knowing and willful failure to post is considered evidence of an unlawful motive in those unfair labor practice proceedings in which motive is an issue.

EEOC Presentation on Social Media in the Workplace

You can download my PowerPoint slides from my Social Media in the Workplace presentation at the EEOC’s Annual Seminar in Seattle here.

An online database of 177 social media policies is here.

The NLRB Acting General Counsel’s summary of social media cases before Board is here.

The U.S. Chamber of Commerce’s summary of social media cases before the NLRB is here.

National Labor Relations Board Expands Definition of Concerted Activity

A company recently implemented a new casual dress rule requiring that shirts be tucked in.  While waiting for a sales meeting to begin, one salesman asked the Vice President of Sales about the new policy.  Another salesman then made several statements to the VP including “It [the rule] is pretty restrictive.  You know, I might not want to tuck in my shirt;” “I didn’t sign up for this crap”; and “I don’t need the money.”  The VP asked the salesman to discuss the rule with him later, but the salesman persisted  By the end of the discussion, seven or eight sales reps were watching.  The second salesman was later given a written warning for arguing with the VP.

In Wyndham Resort Development Corp., the NLRB concluded that the warning was unlawful because the salesman was disciplined for engaging in protected concerted activity.   Historically, “concerted activity” has required proof that the employee was not acting solely on his or her own behalf, but “with or on the authority of other employees.”

As described by dissenting Member Hayes, what is new about this case is that the Board is  “conflating the concepts of group setting and group complaints.”   Now, the Board apparently extends the cloak of protected concerted activity to cover any complaint about working conditions merely because the complaint is voiced within earshot of fellow employees.

This protection of concerted activity applies to both union and non-union workplaces.