The NLRB's Assault On Companies' Social Media Policies

In the past 19 months, the NLRB's General Counsel (essentially the agency's top prosecutor) has issued three reports on social media ' August 2011, January 2012, and May 2012. From my experience as a former NLRB attorney and seasoned observer of the NLRB, I think this is the greatest number of reports on any subject in such a short time period. The NLRB's emphasis on social media cases is not particularly surprising, as it needs to find a way to make itself relevant in the law as union-related charges/elections continue to plummet.

Costco Wholesale Corp.

Recently, the NLRB issued its first social media decision, Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 2012). It found that Costco violated Section 8(a)(1) by maintaining a rule prohibiting employees from electronically posting statements that 'damage the company ' or damage any person's reputation.' The rule stated:

Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. 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 outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

The NLRB analyzed whether this rule chilled employees in the exercise of Section 7 rights by initially determining that the rule did not explicitly restrict Section 7 rights. Thus, the analysis was whether: 1) employees would reasonably construe the rule's language to prohibit Section 7 activity; 2) the rule was promulgated in response to union activity; or 3) the rule has been applied to restrict the exercise of Section 7 rights. See, Lutheran Heritage Village – Livonia, 343 NLRB 646, 647 (2004). The NLRB found:

[T]he broad prohibition against making statements that 'damage the company, defame any individual or damage any person's reputation' clearly encompasses concerted communication protesting the respondent's treatment of its employees. Indeed, there is nothing in the rule that even arguably suggests that protected communications are prohibited from the broad parameters of the rule.

Slip op. p. 2.

Therefore, Costco's maintenance of the rule had a 'reasonable tendency to inhibit employees' protected activity' and violated Section 8(a)(1).

Knauz BMW

Later that month, the NLRB issued Knauz BMW, 358 NLRB No. 164 (Sept. 2012), wherein it found the company's 'courtesy' rule was unlawful, while finding an employee's discharge for posting certain photographs on Facebook was not unlawful. The 'courtesy' rule stated: '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.'

The NLRB held:

Employees would reasonably construe its broad prohibition against 'disrespectful' conduct and 'language which injures the image or reputation of the Dealership' as encompassing Section 7 activity, such as employees' protected statements ' that object to their working conditions and seek the support of others in improving them. [Furthermore] an employee reading this rule would reasonably assume that the Respondent would regard statements of protest or criticism as 'disrespectful' or 'injur[ious] [to] the image or reputation of the Dealership.

The General Counsel's View

The General Counsel's May 30, 2012 report discusses a number of topics within a company's social media policies and is particularly enlightening on how the General Counsel views these policies.

The first topic is a company discouraging communications with co-workers. One company had this policy: 'Think carefully about 'friending' co-workers ' on external social media sites. Communications with coworkers on such sites that would be inappropriate in the workplace are also inappropriate online.' Another company's policy read: 'Adopt a friendly tone when engaging online. Don't pick fights. Social media is about conversations. ' Remember to communicate in a professional tone ' . This includes not only the obvious (no ethnic slurs, personal insults, obscenity) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory ' such as politics and religion.'

The General Counsel found both of the above policies to be unlawfully overbroad because it would discourage communications among co-workers. Concerning the second, the General Counsel found discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion. Without further clarification of what is 'objectionable or inflammatory,' employees would reasonably construe this rule to 'prohibit robust but protected discussions about working conditions or unionism.'

Another frequent topic in company policies on social media is restricting communication with other parties. One company's policy read: 'Unless you receive prior authorization from the Communications Department to correspond with members of the media regarding the Employer's business activities, you must direct inquiries to the Communications Department. Similarly, you have the obligation to obtain the written authorization of the Corporate Communications Department before engaging in public communications regarding Employer's business activities.'

The General Counsel found: 'While an employer has a legitimate need to control release of certain information, its employees have the protected right to seek help by going to the press, blogging, speaking at a union rally ' regarding their working conditions.' An employer rule that prohibits any employee communications to media, or requires prior authorization for such communications is unlawfully overbroad.

The General Counsel did not find all company policies restricting communications unlawful. One company's policy stated: '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 General Counsel found the policy lawful because this provision would not reasonably be construed to apply to Section 7 activity. Specifically, the rule contained a list of plainly egregious conduct, such as bullying and discrimination.

Confidential Information

The confidential nature of information is a frequent concern in all types of company policies. The NLRB has long recognized that the term 'confidential information,' without narrowing its scope so as to exclude Section 7 activity, will reasonably be interpreted to include information concerning terms and conditions of employment. However, the General Counsel's analysis in this area appears inconsistent.

In two cases, the General Counsel found these company policies unlawful:

Employees are prohibited from posting information regarding the Employer on any social networking sites ' 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. '

If during the course of your work you create, receive or become aware of personal information about employees, customers, customers' patients, providers, business partners or third parties, don't disclose that information via social media. ' You may disclose personal information only to those authorized to receive it in accordance with the [Employer's] Privacy policies.

The General Counsel found that the terms 'material non-public information' and 'personal information,' in the absence of clarification, were so vague that employees would reasonably construe them to include subjects that involve their wages and working conditions. Furthermore, information about company performance, cost increases, contracts and customer wins or losses has potential relevance in collective-bargaining negotiations regarding employees' wages and benefits.

Nevertheless, the General Counsel found an employer's prohibition of discussion of 'secret, confidential, or attorney-client privileged information' as lawful because it is 'clearly intended to protect the Employer's legitimate interest in safeguarding its confidential proprietary and privileged information.'

Historically, the NLRB has frowned upon company policies requiring employees to report on each other. In social media, it is no different. One company had a policy: 'Report any unusual or inappropriate social media activity to the system administrator.' Another company had a policy: 'Employees, who receive unsolicited or inappropriate electronic communications from persons within or outside the Employer, should contact the President or President's designated agent.' The General Counsel found these provisions overly broad, because employees would reasonably interpret the rule to restrain exercise of their Section 7 right to communicate with their fellow employees and third parties, such as a union, about terms and conditions of employment.

Redress of Complaints

Similarly, the NLRB has found discouraging the redress of complaints to be unlawful. A company policy stated: 'The Employer believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or management than by posting complaints on the Internet. The Employer encourages employees ' to consider using available internal resources, rather than social media ' to resolve these types of concerns.'

The General Counsel found that the rule had the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.

Accuracy

The accuracy of posted information was another topic addressed by the General Counsel. A company's policy stated: 'If you engage in a discussion related to the Employer, you must also be sure that your posts are completely accurate and not misleading.' The General Counsel found the term 'completely accurate and not misleading' was 'overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of the Employer's labor policies and its treatment of employees that would be protected so long as they are not maliciously false.' Furthermore, the policy did not provide any examples as guidance to meaning of this term.

Savings Clauses

The last issue visited was savings clauses, such as, 'this Policy will not be construed or applied in a manner that improperly interferes with employees' rights under the NLRA.' The General Counsel found this clause and similar ones do not cure the unlawful provisions of an employer's social media policy because 'employees would not understand from this disclaimer that protected activities are in fact permitted.'

However, the General Counsel did put his stamp of approval on Wal-Mart's social media policy, finding that its policy was not ambiguous because it provided sufficient examples of prohibited conduct so that employees would not reasonably read the rules to prohibit Section 7 activity. An example is the rule prohibiting 'inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.' This rule was found lawful because it prohibits plainly egregious conduct, such as discrimination and threats of violence. Also, there was no evidence that Wal-Mart has used the rule to discipline employees for Section 7 activity.

Furthermore, its 'courtesy' rule, 'be respectful and fair and courteous,' was found lawful because it provided sufficient examples of plainly egregious conduct so that employees would not reasonably construe rule to prohibit Section 7 conduct. Its confidentiality rule read, 'Maintain the confidentiality of (store) trade secrets and private or confidential information. ' Do not post internal reports, policies, procedures or other internal business-related confidential communications.' This was deemed lawful because it provided 'sufficient examples of prohibited disclosures.

Administrative Law Judges

Administrative Law Judges (ALJs) ruled on several social media cases in 2011 and 2012. In G4S Secure Solutions (Mar. 2012), an ALJ found unlawful an employer's social networking policy, which said, 'Do not comment on work-related legal matters without express permission of the legal department.' The ALJ found the policy was illegal because the term 'legal matters' was not defined. It cannot be assumed that employees have the knowledge to discern what a federal law is ' which is permitted under disclaimer ' rather than prohibited 'legal matter.' The policy would be reasonably interpreted to prevent employees from discussing working conditions and terms and conditions of employment, where discussions concern potential legal actions/complaints that employees have filed. The ALJ's decision in EchoStar Technologies (Sept. 2012) analyzed a number of social media policies and is a worthwhile read. Unfortunately, its length, 43 pages, makes it impossible to discuss in depth in this article.

Conclusion

Every company should review its policies to determine whether it has drafted social media policies and whether they are narrow enough to withstand an analysis by the NLRB and/or the NLRB's General Counsel.

Bruce E. Buchanan is an attorney in the Nashville, TN, office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law as well as employers in employment/labor law. He can be reached at [email protected].

Over the past two years, the National Labor Relations Board (NLRB) has been aggressively pursuing employers in relation to their social media policies and the discharge of employees who utilized social media to criticize their employers about wages, hours and terms and conditions of employment. This article discusses the NLRB's views on social media policies, through two recent NLRB decisions, and the eyes of the NLRB's General Counsel and its Administrative Law Judges. (Due to space restrictions, I do not focus on discharges related to social media, but leave that for another article.)

Background

Many casual observers of the NLRB might wonder how it even has authority over social media-related cases. The answer is simple ' Section 7 of the National Labor Relations Act states that employees have the right to engage in 'concerted activities' for 'mutual aid or protection.' Moreover, the maintenance of work rules, such as those concerning social media, that reasonably tend to coerce employees in the exercise of their Section 7 rights, violate Section 8(a)(1) of the NLRA.

In the past 19 months, the NLRB's General Counsel (essentially the agency's top prosecutor) has issued three reports on social media ' August 2011, January 2012, and May 2012. From my experience as a former NLRB attorney and seasoned observer of the NLRB, I think this is the greatest number of reports on any subject in such a short time period. The NLRB's emphasis on social media cases is not particularly surprising, as it needs to find a way to make itself relevant in the law as union-related charges/elections continue to plummet.

Costco Wholesale Corp.

Recently, the NLRB issued its first social media decision, Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 2012). It found that Costco violated Section 8(a)(1) by maintaining a rule prohibiting employees from electronically posting statements that 'damage the company ' or damage any person's reputation.' The rule stated:

Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. 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 outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.

The NLRB analyzed whether this rule chilled employees in the exercise of Section 7 rights by initially determining that the rule did not explicitly restrict Section 7 rights. Thus, the analysis was whether: 1) employees would reasonably construe the rule's language to prohibit Section 7 activity; 2) the rule was promulgated in response to union activity; or 3) the rule has been applied to restrict the exercise of Section 7 rights. See, Lutheran Heritage Village – Livonia, 343 NLRB 646, 647 (2004). The NLRB found:

[T]he broad prohibition against making statements that 'damage the company, defame any individual or damage any person's reputation' clearly encompasses concerted communication protesting the respondent's treatment of its employees. Indeed, there is nothing in the rule that even arguably suggests that protected communications are prohibited from the broad parameters of the rule.

Slip op. p. 2.

Therefore, Costco's maintenance of the rule had a 'reasonable tendency to inhibit employees' protected activity' and violated Section 8(a)(1).

Knauz BMW

Later that month, the NLRB issued Knauz BMW, 358 NLRB No. 164 (Sept. 2012), wherein it found the company's 'courtesy' rule was unlawful, while finding an employee's discharge for posting certain photographs on Facebook was not unlawful. The 'courtesy' rule stated: '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.'

The NLRB held:

Employees would reasonably construe its broad prohibition against 'disrespectful' conduct and 'language which injures the image or reputation of the Dealership' as encompassing Section 7 activity, such as employees' protected statements ' that object to their working conditions and seek the support of others in improving them. [Furthermore] an employee reading this rule would reasonably assume that the Respondent would regard statements of protest or criticism as 'disrespectful' or 'injur[ious] [to] the image or reputation of the Dealership.

The General Counsel's View

The General Counsel's May 30, 2012 report discusses a number of topics within a company's social media policies and is particularly enlightening on how the General Counsel views these policies.

The first topic is a company discouraging communications with co-workers. One company had this policy: 'Think carefully about 'friending' co-workers ' on external social media sites. Communications with coworkers on such sites that would be inappropriate in the workplace are also inappropriate online.' Another company's policy read: 'Adopt a friendly tone when engaging online. Don't pick fights. Social media is about conversations. ' Remember to communicate in a professional tone ' . This includes not only the obvious (no ethnic slurs, personal insults, obscenity) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory ' such as politics and religion.'

The General Counsel found both of the above policies to be unlawfully overbroad because it would discourage communications among co-workers. Concerning the second, the General Counsel found discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion. Without further clarification of what is 'objectionable or inflammatory,' employees would reasonably construe this rule to 'prohibit robust but protected discussions about working conditions or unionism.'

Another frequent topic in company policies on social media is restricting communication with other parties. One company's policy read: 'Unless you receive prior authorization from the Communications Department to correspond with members of the media regarding the Employer's business activities, you must direct inquiries to the Communications Department. Similarly, you have the obligation to obtain the written authorization of the Corporate Communications Department before engaging in public communications regarding Employer's business activities.'

The General Counsel found: 'While an employer has a legitimate need to control release of certain information, its employees have the protected right to seek help by going to the press, blogging, speaking at a union rally ' regarding their working conditions.' An employer rule that prohibits any employee communications to media, or requires prior authorization for such communications is unlawfully overbroad.

The General Counsel did not find all company policies restricting communications unlawful. One company's policy stated: '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 General Counsel found the policy lawful because this provision would not reasonably be construed to apply to Section 7 activity. Specifically, the rule contained a list of plainly egregious conduct, such as bullying and discrimination.

Confidential Information

The confidential nature of information is a frequent concern in all types of company policies. The NLRB has long recognized that the term 'confidential information,' without narrowing its scope so as to exclude Section 7 activity, will reasonably be interpreted to include information concerning terms and conditions of employment. However, the General Counsel's analysis in this area appears inconsistent.

In two cases, the General Counsel found these company policies unlawful:

Employees are prohibited from posting information regarding the Employer on any social networking sites ' 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. '

If during the course of your work you create, receive or become aware of personal information about employees, customers, customers' patients, providers, business partners or third parties, don't disclose that information via social media. ' You may disclose personal information only to those authorized to receive it in accordance with the [Employer's] Privacy policies.

The General Counsel found that the terms 'material non-public information' and 'personal information,' in the absence of clarification, were so vague that employees would reasonably construe them to include subjects that involve their wages and working conditions. Furthermore, information about company performance, cost increases, contracts and customer wins or losses has potential relevance in collective-bargaining negotiations regarding employees' wages and benefits.

Nevertheless, the General Counsel found an employer's prohibition of discussion of 'secret, confidential, or attorney-client privileged information' as lawful because it is 'clearly intended to protect the Employer's legitimate interest in safeguarding its confidential proprietary and privileged information.'

Historically, the NLRB has frowned upon company policies requiring employees to report on each other. In social media, it is no different. One company had a policy: 'Report any unusual or inappropriate social media activity to the system administrator.' Another company had a policy: 'Employees, who receive unsolicited or inappropriate electronic communications from persons within or outside the Employer, should contact the President or President's designated agent.' The General Counsel found these provisions overly broad, because employees would reasonably interpret the rule to restrain exercise of their Section 7 right to communicate with their fellow employees and third parties, such as a union, about terms and conditions of employment.

Redress of Complaints

Similarly, the NLRB has found discouraging the redress of complaints to be unlawful. A company policy stated: 'The Employer believes that individuals are more likely to resolve concerns about work by speaking directly with co-workers, supervisors or management than by posting complaints on the Internet. The Employer encourages employees ' to consider using available internal resources, rather than social media ' to resolve these types of concerns.'

The General Counsel found that the rule had the probable effect of precluding or inhibiting employees from the protected activity of seeking redress through alternative forums.

Accuracy

The accuracy of posted information was another topic addressed by the General Counsel. A company's policy stated: 'If you engage in a discussion related to the Employer, you must also be sure that your posts are completely accurate and not misleading.' The General Counsel found the term 'completely accurate and not misleading' was 'overbroad because it would reasonably be interpreted to apply to discussions about, or criticism of the Employer's labor policies and its treatment of employees that would be protected so long as they are not maliciously false.' Furthermore, the policy did not provide any examples as guidance to meaning of this term.

Savings Clauses

The last issue visited was savings clauses, such as, 'this Policy will not be construed or applied in a manner that improperly interferes with employees' rights under the NLRA.' The General Counsel found this clause and similar ones do not cure the unlawful provisions of an employer's social media policy because 'employees would not understand from this disclaimer that protected activities are in fact permitted.'

However, the General Counsel did put his stamp of approval on Wal-Mart's social media policy, finding that its policy was not ambiguous because it provided sufficient examples of prohibited conduct so that employees would not reasonably read the rules to prohibit Section 7 activity. An example is the rule prohibiting 'inappropriate postings that may include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.' This rule was found lawful because it prohibits plainly egregious conduct, such as discrimination and threats of violence. Also, there was no evidence that Wal-Mart has used the rule to discipline employees for Section 7 activity.

Furthermore, its 'courtesy' rule, 'be respectful and fair and courteous,' was found lawful because it provided sufficient examples of plainly egregious conduct so that employees would not reasonably construe rule to prohibit Section 7 conduct. Its confidentiality rule read, 'Maintain the confidentiality of (store) trade secrets and private or confidential information. ' Do not post internal reports, policies, procedures or other internal business-related confidential communications.' This was deemed lawful because it provided 'sufficient examples of prohibited disclosures.

Administrative Law Judges

Administrative Law Judges (ALJs) ruled on several social media cases in 2011 and 2012. In G4S Secure Solutions (Mar. 2012), an ALJ found unlawful an employer's social networking policy, which said, 'Do not comment on work-related legal matters without express permission of the legal department.' The ALJ found the policy was illegal because the term 'legal matters' was not defined. It cannot be assumed that employees have the knowledge to discern what a federal law is ' which is permitted under disclaimer ' rather than prohibited 'legal matter.' The policy would be reasonably interpreted to prevent employees from discussing working conditions and terms and conditions of employment, where discussions concern potential legal actions/complaints that employees have filed. The ALJ's decision in EchoStar Technologies (Sept. 2012) analyzed a number of social media policies and is a worthwhile read. Unfortunately, its length, 43 pages, makes it impossible to discuss in depth in this article.

Conclusion

Every company should review its policies to determine whether it has drafted social media policies and whether they are narrow enough to withstand an analysis by the NLRB and/or the NLRB's General Counsel.

Bruce E. Buchanan is an attorney in the Nashville, TN, office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law as well as employers in employment/labor law. He can be reached at [email protected].