For over a year, the National Labor Relations Board (NLRB) has dissected the use of social media in the workplace and the policies governing employee usage of platforms like Twitter and Facebook. Now, after three separate reports and 35 case studies, the NLRB has officially ruled on not one, not two, but three separate social media policies. While these rulings have helped clarify a muddled picture of what constitutes an acceptable social media policy, questions still remain.
On September 7th, 2012 the NLRB invalidated Costco’s social media policy, ruling that several portions of the employee handbook contained “chilling” language in violation of employee’s Section 7 rights under the National Labor Relations Act. The NLRB’s Regional Director in Connecticut became aware of these guidelines after the United Food and Commercial Workers’ Union filed charges against the retail chain while attempting to organize meat department workers in a Milford, Connecticut branch. In affirming Administrative Law Judge (ALJ) Steve Fish’s ruling, the NLRB outlined what parts of Costco’s social media policy were objectionable. David Katz, an attorney with Mintz Levin and contributor to the firm’s blog, Employment Matters, provided a succinct breakdown of the Board’s ruling:
“(T)he NLRB issued a Decision and Order (which you can access here) invalidating Costco Wholesale Corporation’s electronic posting rule, found in its employee handbook, that prohibited employees from making statements that “damage the Company, defame any individual or damage any person’s reputation.” With little analysis, the Board found Costco’s policy overly broad, concluding that “the rule would reasonably tend to chill employees in the exercise of their [NLRA] Section 7 rights,” as employees would “reasonably construe the language to prohibit Section 7 activity.” Section 7 of the NLRA provides to all employees—unionized and non-unionized—the right to engage in protected “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Such protected concerted activity includes, for example, the right to protest an employer’s treatment of its employees or other working conditions.”
This ruling marked the first time the NLRB has invalidated a social media policy, creating a flurry of action from LXBN authors. Philip Gordon of Littler Mendelson detailed each questionable element of Costco’s social media policy on his firm’s blog, Workplace Privacy Counsel. Jason Shinn had a few takeaways for employers on the Michigan Employment Law Advisor, as did Michael Schmidt, who had this to say on his blog, Social Media Employment Law Blog:
“Part of the problem here is that the difference between a lawful workplace rule and an unlawful workplace rule lies, as the NLRB has ruled, in “whether the rule would reasonably tend to chill employees in the exercise of their Section 7 rights.” Yet, the Costco decision does not refer to anything in the record where employees actually testified one way or the other on whether they felt a chilling effect, or whether they construed the rule to prohibit protected activity. Thus, rulings on liability are made based on how the Board interprets the language, based on whatever context the Board deems relevant or not.”
Just two weeks later, the NLRB went after another social media policy. This time, EchoStar Technologies found itself on the wrong side of a NLRB ruling.
Specifically, the ALJ presiding over the case, Clifford Hansen, ruled that the provision of EchoStar’s handbook prohibiting “disparaging” comments about the company, it’s officers, products or services was in violation of the NLRA. EchoStar’s employees were also prohibited from using social media with the company’s resources while on the clock. Nelson Cary and Ashley Manfull analyzed the ALJ’s decision on Vorys on Labor:
” The ALJ found that the prohibition on “disparaging” comments violated the NLRA. The social media policy also prohibited use of personal social media, such as blogs, forums, social networks, virtual worlds, etc., using Echostar resources and/or while on “company time.” The ALJ found this policy to violate the NLRA. Relying upon well-established NLRB precedent in the area of solicitation and distribution policies, the ALJ held that the concept of “company time” is too broad a formulation. The ALJ’s decision on this aspect of the policy demonstrates how rules that have been around for a long time can be applied to the new era of social media.”
Judge Hansen also held that the “savings clause” designed to bring the policy back in line with the law was insufficient. Sanjeeve DeSoyza looked at Hansen’s reasoning for rejecting EchoStar’s savings clause on the New York Labor & Employment Law Report:
“ALJ Anderson further rejected EchoStar’s argument that a “savings clause” salvaged the rule. The clause advised employees to contact Human Resources if they had questions regarding the handbook and further stated that if a conflict arose between an EchoStar policy and the law, the appropriate law would govern and the policy would be conformed in accordance with that law. Noting that the clause appeared in the introductory sections of the handbook, several pages before the social media policy, the ALJ found that a general admonition to contact Human Resources does not create a “legal loop” that an employee must jump through before the rule may be challenged.”
After two cases focusing exclusively on the social media policy of an employer, the NLRB got the chance to look at a case involving an employee who was fired after several Facebook posts landed him in hot water. Colin Leonard, a labor and employment law attorney with Bond Schoeneck & King, gave the best blow-by-blow on the Network of the transgressions that lead to the employee’s termination:
“The Board concluded that the employee, a salesman at a BMW dealership, was terminated for posting pictures on Facebook of an unfortunate incident at an adjoining Land Rover dealership, which was also owned by the same employer. The incident depicted in the employee’s photos was of a Land Rover that had been driven into a pond by a customer’s teenage son and included the caption: “This is your car. This is your car on drugs.”
….
Specifically, the employee criticized the low budget food and drink offerings provided to customers — the 8 oz. bag of chips, the $2.00 cookie plate from Sam’s Club and the hot dog cart where a customer “could attain a over cooked wiener and a stale bunn [sic],” among other criticisms. “
ALJ Joel Biblowitz, who presided over the hearings, held that the employer, Karl Knauz Motors, was within their rights to terminate the employee as the Facebook postings could not be construed to be “protected and concerted” activity. While the Board ultimately agreed with Judge Biblowitz, two of the three Board members took it one step further and invalidated a portion of the BMW dealer’s social media policy, which had stated:
“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.”
The Board found that several phrases in that passage were overly broad and were not precluded by a savings clause.
In all three cases, the one constant was the Board’s eagerness to invalidate employment policies in order to protect concerted activity. As Daniel Schwartz pointed out, many of these policies seemed relatively neutral, but the NLRB may be doing doing what it’s always done:
“The larger view is that the NLRB is doing, unfortunately, what is always does — which is change policies and logic based on which party controls the White House. It has done it before under the Clinton and Bush years, and the latest decisions merely continues that trend.
Should anyone really be surprised that the NLRB’s rulings are reverting back to a perspective that we had under the Clinton White House?”
Schwartz goes on to echo the same opinion that was reiterated by the employment and labor law bloggers across LXBN:
“So, where does that leave employers? Resist the urge to act (and overreact) based on each decision or pronouncement from the NLRB. Yes, the law is developing, and yes, its important to make sure that you are compliant with the law, but the overall principles have been in play and in flux for years.
Review your policies. Check to be sure that they’re not so one-sided that they could be interpreted as chilling protected concerted activity. And seek counsel when terminating employees for social media activity.”
Although Schwartz is admittedly tired of covering the NLRB’s evolving stance on social media (and I can’t imagine he’s alone), that hasn’t stopped him and the rest of the employment and labor law attorneys on The LexBlog Network. Since we began tagging and organizing our client’s content on LXBN, over 430 posts have discussed Board rulings and reports. The invalidation of the Costco policy alone drew in just under 20 posts in a month’s time. In the 11 days since the Board’s affirmation of the ALJ’s ruling in Karl Knauz Motors, 9 posts have broken down the details and implications of the case. So while we all may be suffering from a little NLRB-related fatigue, it’s a safe bet that the next case the NLRB takes up which involves Facebook, Twitter, or social media in general will draw just as much coverage (if not more) than the last.