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NLRB Guidance on Social Media Policies—Look to Wal-Mart

Posted on Wed, Nov 14, 2012 @ 09:49 AM

Robert J. Hollingsworthby Robert J. Hollingsworth

The phenomenal rise in the use of social media is reflected in the recent focus of the National Labor Relations Board (“NLRB”) on cases involving social media policies.  As people increasingly use social media to discuss all aspects of their lives, they frequently post comments about work-related matters.  These comments sometimes involve complaints about the employer, supervisors, and co-workers, often in colorful and profane language.  Given the potential that a worldwide audience may view these postings, employers have become alarmed at the potential for the dissemination of confidential information or trade secrets; injury to the employer’s business reputation; threats, harassment or ridicule of co-workers; or invasions of privacy, just to name a few concerns.  In response, many employers have adopted social media policies and in some cases have disciplined employees for violations of these rules.

From its inception in 1935, the NLRB has protected the right of workers to engage in “protected concerted activity.”  This refers to the right of employees in the private sector to join together to improve their wages and working conditions, with or without a union, or to refrain from such activities.  These rights may be exercised through social media.

The General Counsel of the NLRB has issued three reports on social media policies: the first on August 18, 2011, the second on January 24, 2012, and the third on May 30, 2012.  For employers looking for guidance on how to write a social media policy that will pass scrutiny by the NLRB, the General Counsel’s third report is the most helpful.

While the General Counsel’s third report is not a model of consistency or clarity, it contains some helpful recommendations.  First, when drafting a social media policy, employers should avoid language that is too general and might restrict “protected concerted activity”: for example, a policy that prohibits employees from disclosing confidential information.  Since “confidential” information could include wages, the NLRB would consider such a policy as too broad.  The General Counsel’s advice: define and give examples of “confidential” information so that employees will understand that it does not include “wages” or other matters relating to the terms or conditions of employment

The second most helpful piece of advice from the General Counsel is that he found one employer’s social media policy to fully comply with the National Labor Relations Act.  The employer is Wal-Mart.  The General Counsel was so favorably impressed with Wal-Mart’s revised policy that he attached the entire policy to his report.

For any employer drafting or revising its own policy, the Wal-Mart policy provides a helpful starting point.  Following this policy will not absolutely guarantee that the NLRB won’t challenge some aspect of the policy in the future, but an employer adopting some version of this policy will have the comfort of knowing that its policy presently enjoys the endorsement of the General Counsel.  Click here for a copy of the Wal-Mart policy.

Tags: Social Media Policy, Protected Concerted Activity, NLRB, National Labor Relations Board

NLRB Remains Focused on Discipline Decisions by Employers

Posted on Fri, Oct 12, 2012 @ 12:57 PM

Jack B. Harrisonby Jack B. Harrison

In a recent NLRB decision the Board found that an employer's harrassment investigation was lawful, but that the resulting discipline was not.

For a moment consider the following facts:

An employer faces an attempt by its employees to decertify the workplace union.  As the campaign goes on, three union newsletters posted in the employee breakroom are anonymously defaced apparently by someone in support of the union.  On one newsletter, someone writes, “Dear P*ssies, please read.”  On a second newsletter, someone writes, “Hey cat food lovers, how’s your income doing?” On the third newsletter, someone writes, “Warehouse workers, RIP.”  Not surprisingly, several female workers then complain about the statements, asserting they are “vulgar, threatening and offensive.”

As it is legally obligated to do, the employer conducts an investigation.  Based on the handwriting, the investigation becomes focused on a specific male employee. The employer then interviews the employee, who denies the handwriting is his.  At that point, the employer takes no action.  Then, the investigation takes a rather strange turn.   

The employee tries to call his union representative to discuss the investigation.  However, in making the call, the employee apparently “unwittingly dialed” the employer’s vice president, rather than his union representative. Assuming he is talking to the union representative, the employee confesses to defacing the newsletters.  At that point, the vice president identifies himself to the employee.  Needless to say, the employee is shocked, and immediately denies his identity.  Nevertheless, the employer then summons the employee to a meeting, where he is suspended.  Ultimately, the employee is discharged for the comments written on the newsletter and for his dishonesty in the investigation.

On its face, this would appear to be a justifiable discharge. 

These were the facts before the National Labor Relations Board in Fresenius USA Manufacturing, Inc., 358 NLRB No. 138 (September 19, 2012).  However, the union filed charges challenging the validity of the discharge in this case.  In its decision, the Board first upheld the employer’s right to investigate the complaints, determining that “employers have a legitimate business interest in investigating facially valid complaints of employee misconduct, including complaints of harassment.”  Additionally, the Board upheld the employer’s right to question the employee, so long as the questioning did not delve into his union views or any of his union activities.  However, when turning to the discharge itself, the Board found that the employee’s statements made on the newsletters, as well as his false denial, were protected activity under the National Labor Relations Act.  The Board further held that the employer’s discharge of the employee for this conduct was a violation of the Act, in that the employer had discharged the employee for engaging in what the Board determined was protected activity.  Regarding the offensive statements written on the newsletters, the Board concluded that they were merely “impulsive” and not premeditated, and therefore did not lose their protected status.

What does this decision mean for a prudent employer?  At the core, it is a caution to an employer that when facing employee misconduct that may be protected activity or may have occurred in the context of protected activity under the Act, an employer should take care to insure that any investigation of the misconduct focus solely on the misconduct itself and steer clear of the protected activity context in which it may have occurred.  This decision also indicates that the Board remains focused on discipline decisions by employers, as well as attempts by employers to enforce reasonable work rules designed to promote civility and decorum in a workplace.

Tags: Protected Concerted Activity, NLRB, National Labor Relations Board

More From the NLRB on Employee Handbooks & Personnel Policies

Posted on Mon, Oct 01, 2012 @ 03:37 PM

by Jack Harrison Jack B. Harrison

For some time now, the National Labor Relations Board has been paying a great deal of attention to issues related to personnel policies.  In several recent decisions, the Board dealt with the issue of whether and when employees could “reasonably conclude” that certain facially neutral employee policies required them to refrain from engaging in protected concerted activities.

In Costco Wholesale, Inc., 358 NLRB No. 106 (Sept. 7, 2012), the Board concluded that Costco’s rule related to electronic posting that prohibited statements that “damage the Company . . . or damage any person’s reputation” was overly broad because it arguably also included complaints by employees regarding the company’s treatment of employees.  The Board indicated that where a social media policy is narrowly targeted toward preventing egregious employee misconduct, such as “sabotage and sexual or racial harassment,” it would likely withstand scrutiny by the Board. Therefore, employers should pay particular attention to their social media policies to insure that they fall on the right side of the line between impermissible social media policies that improperly restrain employees’ protected conduct and permissible social media policies that focus on workplace decorum.

Additionally, the Board in Costco concluded that handbook provisions aimed at restricting employees from sharing private or otherwise sensitive information about sick days, leaves of absence, FMLA leave, ADA issues, workers’ compensation injuries, personal health information, payroll, Social Security numbers, employee names, addresses, telephone numbers and email addresses, were unlawfully restrictions on the rights of employees to discuss terms and conditions of employment and, thus, violated the Act.

In Flex Frac Logistics, LLC, 358 NLRB No. 127 (Sept. 11, 2012), the Board was faced with a provision in an at-will employment agreement that prohibited employees from disclosing “confidential information,” including “personnel information,” to individuals “outside the organization.” In reviewing this provision, the Board concluded that the provision, by its language, prohibited employees from discussing the terms and conditions of their employment with union representatives.  The Board determined that, to the extent the provision was ambiguous, it was to be construed against the employer, in that the provision could be read to have coercive meaning in violation of the Act.

In TT&W Farm Products, Inc., 358 NLRB No. 125 (Sept. 11, 2012), the Board reviewed five rules contained in an employee handbook that were related to employees leaving their workstations during their assigned work times. The Board concluded that where the rules were reasonably read to prohibit unauthorized leaves or breaks, they were permissible.  However, the Board also determined that rules that prohibited employees from “walking off the job” or from “willfully restricting production” were unlawful because they prohibited participating in a protected strike.

These decisions make it clear that the Board continues to be focused on provisions contained in employee handbooks and personnel policies, reviewing workplace rules and policies in both non-union and union workplaces to determine if they reasonably tend to interfere with employees’ rights under the Act.  In light of the Board’s continued interest, prudent employers should continue to review their rules and policies to insure that they are consistent with the guidance given by the Board through its decisions.

Tags: Employee Handbooks, Protected Concerted Activity, NLRB, National Labor Relations Board

Emerging Employment-Related Issue: Protected Concerted Activities

Posted on Fri, May 18, 2012 @ 02:40 PM

Alexis L. McDanielby Alexis L. McDaniel

Imagine you’re the general manager of a luxury car dealership.  One day, after browsing through pictures of your children on Facebook, you notice a posting made by one of your salesman criticizing what he describes as the cheap food of hot dogs and chips you provided at your recent sales event.  Although no other salesman commented on the posting, prior to this incident, the salespeople met with management to discuss their concerns about the event.  Infuriated by the posting, you want to fire your salesman on the spot, but should you? 

No, not according to the decision in Karl Knauz Motors, Inc., Case No. 13-CA-46452 (September 28, 2011).  In this case, an ALJ found that the critical comments made by the salesman were protected concerted activities because “food offerings” could have affected car purchases and thereby wages of salespeople.

Under Section 7 of the National Labor Relations Act (“NLRA”), an employee has the right to engage in protected concerted activity and the National Labor Relations Board (“NLRB”) has provided guidance on what this entails.  Based on these guidelines, the following are examples of protected activities:

  • Two or more employees addressing their employer about improving their working conditions or pay;
  • One employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions; and
  • Two or more employees discussing pay or other work-related issues with each other. 

Prior to the emergence of social media, questions regarding concerted activities were typically confined to the work environment.  For example, a supervisor might overhear Joe and Jane discussing their salary near the water cooler.  Even if the employer considered employee salaries a confidential matter, Joe and Jane’s discussion would be protected under Section 7 of the NLRA.  Now, with websites like Twitter and Facebook, employees have often moved beyond their own work environment and into the world-wide audience these social websites provide.  The end result is a tension between an employer’s concern of negative publicity and loss of business, with the employees’ right to engage in protected concerted activity. 

Although it will take some time before the new social media cases are decided by the NLRB and reviewed by the courts, in two reports, dated August 18, 2011 and January 24, 2012, the Acting General Counsel of the NLRB discusses principles to determine whether an employee’s social media activities are protected.  These emerging principles include the following:

  • By intent or result, employee conduct on social media must involve group activity relating to terms or conditions of employment. 
  • Employee social media posts that directly solicits co-workers or tries to promote group action regarding a term or condition of employment will be protected.
  • Employee social media post that suggests an intent to promote group action or support will likely be protected.
  • Employee social media post that does not expressly solicit co-worker action or support may still be protected if it generates a substantive conversation about terms and conditions of employment. 
  • Post that is not directed to co-workers, or does not address issues of mutual concern to other employees, will likely be viewed as unprotected griping. 
  • Disparaging comments about an employer or supervisors are generally protected unless they:
  • are not related to a dispute over working conditions
  • are maliciously defamatory
  • focus solely on company products or business policies
  • appeal to racial, ethnic, or similar prejudices

It all boils down to this—an employer must be careful when responding to an employee’s social media posting.  There can be severe consequences for an employer that does not take the appropriate steps to evaluate whether a social network posting is protected concerted activity under the NLRA.

Check back often, as there will definitely be new developments to this ongoing issue.

Tags: Social Media, Twitter, NLRA, National Labor Relations Act, Protected Concerted Activity, Facebook