NLRB Finds Social Media Rules Lawful – For Now
The National Labor Relations Board (the “Board”) concluded that an employer did not violate employees’ rights under the National Labor Relations Act (NLRA) to engage in concerted activity regarding their terms and conditions of employment by maintaining several contested provisions in its social media policy.
In Medic Ambulance Service, the Board utilized its now familiar Boeing framework, under which facially neutral work rules are divided into three categories: whether they (1) are lawful, (2) warrant individualized scrutiny, or (3) are unlawful. The Board reversed the Administrative Law Judge (ALJ) and held that the employer’s work rules prohibiting the following conduct were lawful: (1) disclosure of confidential information; (2) use of the employer’s name to disparage causes or people; (3) posting photos of coworkers; (4) sharing employee compensation information; and (5) disparaging the employer or others.
Prohibiting Disclosure of Confidential Information: The rule admonished employees to not disclose “confidential or proprietary information regarding the [employer] or coworkers.” The next sentence states that employee use of copyrighted or trademarked information, trade secrets, or other sensitive action could subject an employee to legal action. The ALJ found that the rule would restrict employees’ NLRA right to discuss and share information about their coworkers. The Board reversed, concluding that the express prohibition was limited to use of copyrights, trademarks, trade secrets, and other sensitive information. Moreover, the Board reasoned that rule does not specifically reference employees’ contact information, wages, or other terms and condition of employment, and, thus, an objectively reasonable employee would not understand the rule to prohibit the sharing of information related to employees’ terms and conditions of employment.
Use of Employer’s Name to Disparage Causes or People: This rule prohibited employees from using the company’s name “to endorse, promote, denigrate…any product, opinion, cause or person.” The ALJ concluded that the rule was “extraordinarily broad” and could be read to interfere with employees’ protected right to seek outside support concerning their terms and conditions of employment, and any business justification was outweighed by the rule’s impact on employees’ NLRA rights. The Board, however, noted that the social media policy included a guideline that employees must make it clear that the views expressed on social media were the employee’s alone and did not represent the employer’s views. The Board concluded that, when the context of the entire policy was considered, the objectively reasonable employee would understand that this rule is aimed at preventing employees from speaking on the employer’s behalf. The Board also rejected the argument that a reasonable employee would understand the rule to prohibit employees from referring to the employer by name in a post critical of the employer’s terms and conditions of employment.
Posting Photos of Coworkers: The rule prohibited employees from posting photos of coworkers without their consent. A related procedure prohibited the posting of employer-owned equipment or employees without written permission. The Board found that the contested rule included a sentence asking employees to be “respectful of the privacy and dignity of your coworkers.” Within that context, and the related procedure’s prohibition on posting photos of company equipment, the Board concluded that the rule’s purpose was aimed at the employer’s confidentiality interests, as well as employees’ privacy and dignity interests. Thus, the Board concluded that an objectively reasonable employee would not understand the rule to prohibit protected Section 7 activity, but, rather, ensuring that employees would not post photos of each other on social media without the other employee’s consent.
Sharing of Employee Compensation Information: The contested language in this rule required employees to forward “all telephone calls regarding a current or former employee” to their supervisor. The rule goes on to specify the employer representatives who may “give out any information on current or former employee compensation.” The ALJ concluded that the rule restricted employees’ right to share wage information, and any business justification did not outweigh the impact on employees’ NLRA right to share compensation information. The Board disagreed, concluding that the rule, read as a whole, was intended to apply only when someone telephoned the employer seeking information about a particular employee, including how much he or she makes. The Board reasoned that limiting who may disclose this sensitive information ensure that it is given only to those entitled to receive it, and a reasonable employee would understand that the rule did not restrict employees from discussing their wages with each other or to disclose them to a union.
Disparaging the Employer or Others: The rule admonished employees not to use blogs, social networking sites, or personal websites to disparage “the company, its associates, customers, vendors, business practices…or other employees of the company.” The Board reversed the ALJ’s finding of a violation, reasoning that the employer has a legitimate business justification in prohibiting employees from disparaging it or its products to its customers and the public, which outweighs the rule’s potential to interfere with Section 7 rights.
Practical Impact: This decision is another in a long line of employer-friendly work rule decisions by the Trump Board. But storm clouds loom on the horizon. President Joe Biden has installed the Board’s lone Democrat, Lauren McFerran, as Board Chair. Chair McFerran has written several scathing dissents in response to the holdings of the Republican majority in work rule cases, and has repeatedly criticized the Boeing framework as flawed. We expect that when a Democratic majority controls the Board – which could occur as soon as this summer – Boeing will be revisited and likely reversed. Of course, we will keep you updated regarding those developments.