The lawfulness of employer’s social-media policies under the National Labor Relations Act (NLRA) continues to be a hot topic. Although the position of the National Labor Relations Board (NLRB) continues to be hostile towards these policies. And, without court decisions on the question, employers are not left with much other legal guidance. Until now, there has been just one decision by an Administrative Law Judge (ALJ), which found that an employee’s Facebook posts were protected by the NLRA.
A decision issued by an ALJ at the end of March, though, brings the total count to two. In G4S Secure Solutions (USA) Inc., the ALJ looked at two provisions of the company’s social-media policy. First was a prohibition on employees commenting on “work-related legal matters” without the permission of the company’s legal department. Second was a prohibition on employees posting any pictures or videos of employees in uniform or employees on a job site. The ALJ found that the first provision violated the NLRB but upheld the second. Here’s how it went.
The ALJ found that the “no-comment” provision was overly broad and could be reasonably read by employees to prohibit protected concerted activity. In short, the ALJ concluded that the policy could effectively prevent employees from “sending messages to each other about their issues at work . . . via social-networking sites.”
The ALJ found that the “no-photos” provision was lawful, though, holding that the employer “clearly has legitimate reasons for not having pictures of uniformed employees or employees who are at work posted on Facebook and similar sites.”
You could say that the decision is a zero-sum game, since the ALJ came out for the employer on one of the challenged provisions and against the employer on the other. But the more positive approach would be to recognize that there is a valuable victory in the ALJ’s decision. The value, specifically, is the that ALJ recognized a “clearly” legitimate reason to prohibit employees from posting workplace photos online. This is quite different from the position of the NLRB’s General Counsel, who, in his most recent memorandum on social-media policies, took issue with such provisions, concluding that they violated the NLRA.