The NLRB’s recently filed complaint against an employer, in which it alleges that the employer’s social-media policy violates the National Labor Relations Act, has caused quite a stir in the blogosphere. See, for examples, Jon Hyman’s post at the Ohio Employer’s Law Blog, collecting various posts discussing the case. Despite the near hysteria that the American Medical Response Team complaint has caused, the truth is that social-media policies are not doomed, nor are employers who enforce them.
In December 2009, the NLRB’s Office of the General Counsel issued an Advice Memorandum in Sears Holdings, C.A. 18-CA-19801, which specifically approved an employer’s social-media policy and recommended dismissal of a complaint that alleged that the policy violated Section 8 of the National Labor Relations Act (“NLRA”).
In June 2009, Sears issued a social-media policy regarding its employees’ use of blogs, social networks, and other social media. The introductory section of the policy stated that its purpose “was not to restrict the flow of useful and appropriate information, but to minimize
the risk to the Company and its associates.” The policy went on to list several “prohibited subjects,” which employees were not permitted to discuss online, including:
- Company confidential or proprietary information;
- Confidential or proprietary information of clients, partners, vendors, and suppliers;
- Embargoed information such as launch dates, release dates, and pending reorganizations;
- Company intellectual property such as drawings, designs, software, ideas and innovation;
- Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects;
- Explicit sexual references;
- Reference to illegal drugs;
- Obscenity or profanity;
- Disparagement of any race, religion, gender, sexual orientation, disability, or national origin.
The Union filed an unfair-labor-practice charge with the National Labor Relations Board (“NLRB”), shortly after the policy was issued, alleging that the policy, particularly the section in bold, above, violated the NLRA. The Advice Memorandum recommended that the charge be dismissed, concluding that the policy did not conflict with the right to engage in protected concerted activities.
The NLRA prohibits an employer from promulgating workplace rules or policies that would “reasonably tend to chill employees in the exercise of their Section 7 rights.” A rule that does not expressly restrict protected activities will violate Section 8(a)(1) in three conditions:
1. Employees would reasonably construe the policy’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.
Because there’d been no allegation that the policy was enacted in response to union activity and because there’d been no claim that any employee had been disciplined pursuant to the policy in response to their union or protected activity, only the first condition was at issue.
The Memorandum explained that, when reviewing an employer’s policy, including social-media policies, a review of the complained-of policy requires that the policy is evaluated as a whole, instead of parsing it out in small pieces, to ensure that the context of the language is not ignored.
The Memorandum referred to an earlier decision, in which a rule proscribing “negative conversations” about managers was unlawful. In that instance, the rule was contained in a list of policies regarding working conditions, with no further clarification or examples. The Board held that, in the absence of further guidance from the employer, an employee could reasonably construe the rule to limit his or her Section 7 right to engage in protected protest.
By contrast, in a different case, the Board found that a rule forbidding “statements which are slanderous or detrimental to the company” which appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage” could not be reasonably understood to restrict Section 7 activity.
Similarly, the Board concluded that Sears’ rule against the “[d]isparagement of company’s . . . executive leadership, employees, [or] strategy . . . .” could chill the exercise of Section 7 rights if read in isolation, the Policy as a whole provides sufficient context to preclude a
reasonable employee from construing the rule as a limit on Section 7 conduct. The Advice Memorandum explained:
The Policy covers a list of proscribed activities, the vast majority of which are clearly not protected by Section 7. . . . [T]he rule appears in a list of plainly egregious conduct, such as employee conversations involving the Employer’s proprietary information, explicit sexual references, disparagement of race or religion, obscenity or profanity, and references to illegal drugs. The Policy preamble further explains that it was designed to protect the Employer and its employees rather than to “restrict the flow of useful and appropriate information.” Taken as a whole, . . . the Policy contains sufficient examples and explanation of purpose for a reasonable employee to understand that it prohibits the online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about the Employer or working conditions.
Thus, the policy was found not to violate the National Labor Relations Act. Lesson to be learned for employers is this:
- Implement a social-media policy.
- Have your employment counsel review the policy.
- As with any workplace policy, the key objective should be compliance.
- Thus, if your policy is so broad that employees cannot really comply with it in any effective manner, it’s no good—toss it and start over. It may also be in violation of the National Labor Relations Act.