As we have discussed before, several years ago, the Board instituted a significant paradigm shift in analyzing the lawfulness of employers' handbook policies in relation to employees' Section 7 rights, when it issued its decision in
Since
The Board's recent decision in
Background
Since
The union's filing was prompted when the employer began enforcing the policies against bargaining unit members allegedly engaged in protected, concerted activity.
The union argued that the following social media policies violated the Act because they unlawfully interfered with their members' exercise of Section 7 rights:
- Inappropriate communications, even if made on your own time using your own resources, may be grounds for termination. We encourage you to use good judgement when communicating via blogs, online chat rooms.
- Do not disclose confidential or proprietary information regarding the company or coworkers. Use of copyrighted or trademarked company information, trade secrets, or other sensitive information may subject you to legal action.
- Do not use company logos, trademarks, or other symbols in social media. You may not use the company name to endorse, promote, denigrate or otherwise comment on any product, opinion, cause or person.
- Be respectful of the privacy and dignity of your coworkers. Do not use or post photos of coworkers without their express consent . [e]mployees must not post pictures of company owned equipment or other employees on a website
- All telephone calls regarding a current or former employee's position with our company must be forwarded to your supervisor.
- Employees must not use blogs, SNS [(Social Networking Sites)], or personal Web sites to disparage the company, its associates, customers, vendors, business practices, patients, or other employees of the company.
The Administrative Law Judge recommended finding a violation of Section 8(a)(1) as to the policies referenced above.
Board Reverses ALJ, Holding The Employer's Policies Were Lawful and Must Not Be Read in Isolation
In evaluating rules (1) through (5) above, the Board reversed the ALJ, and held that each of the social media policies referenced above was lawful. The Board concluded these rules fell under Category 1(a) under
Specifically, when read in context, the Board concluded the five policies were lawful, based on the following reasoning:
- "Inappropriate communications" rules are generally "always lawful," and particularly here, a reasonable employee would read the introductory language in context of the specific guidelines that followed.
- A rule prohibiting the sharing of "confidential information," which does not specifically identify employees' contact information or terms and conditions of employment, is not unlawful when read in context.
- Prohibiting employees from using the company's name in a social media post is not unlawful here, because the rule should be read in context of another rule that prohibits employees from speaking on behalf of the company, which the Board reasoned was the basis for the employer's rule here.
- A rule prohibiting the posting of photos of employees without their consent was geared to protect employees' privacy and confidentiality interests, and thus outweighed any perceived limitation on the exercise of Section 7 activity.
- A rule restricting employees from sharing employee compensation information was lawful because it was limited, in context, to when someone reaches out to the employee to request this sensitive information. It does not generally prohibit employees from discussing compensation information, which is quintessential protected, concerted activity.
The Board Also Concludes the Presumption of Employee Loyalty Made the Employer's Non-Disparagement Rules Lawful
The Board also reversed the ALJ and found that the employer's policy prohibiting employees from making disparaging statements about the company or others associated with it to be lawful, citing recent precedent that employers have a legitimate justification, recognized by the
While the Board acknowledged that the non-disparagement rule could reasonably be found to infringe upon the exercise of Section 7 activity, given the "substantial" employer justification for the rule, the Board reaffirmed that such rules are lawful, on balance.
Member McFerran's Dissent Foreshadows the Possibility of Change in the
Member McFerran submitted a pointed dissent, asserting that
McFerran argued that each of the rules should have been found unlawful because they are overbroad infringements on Section 7 rights, and not narrowly tailored to promote a legitimate employer interest.
Specifically, McFerran sharply criticized the Board's holding regarding the non-disparagement rule, noting that she has been troubled by the Board's categorical determination that such rules are lawful on their face, without taking the time to balance the employee rights against employer interests.
Takeaways
The Board's recent decision reaffirms the categorical analysis the
In addition, the Board has lent credence to employer justifications for non-disparagement clauses, finding them categorically lawful — even if the purported justifications are not specifically illustrated in the policies.
While the composition of the Board will not change at least until Member Emanuel's term expires in
NLRB Finds Social Media Policies Lawful, Sheds Light On Impact Of Boeing
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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