NLRB Solidifies Position on Social Media
As the National Labor Relations Board (“NLRB”) continues to focus on union-free companies, it has solidified its position on social media by issuing two precedent-setting decisions. The NLRB’s concern with social media policies is that they may “chill” employees from exercising their rights to engage in protected, concerted activity under the National Labor Relations Act (“NLRA”). Until now, the agency’s actions related to social media were limited to decisions by the NLRB’s administrative law judges (“ALJs”) and guidance from the agency in the form of three non-binding memoranda. But in September 2012, the agency issued two Board-level decisions dealing with social media in the workplace: Costco Wholesale Club and Karl Knauz BMW, Knauz Auto Group.
In the Costco decision, the NLRB agreed with the ALJ in deciding that a section of Costco’s policy requiring employees to use “appropriate business decorum” did not violate the NLRA. However, the NLRB disagreed with the ALJ as to the legality of Costco’s broad prohibition against making statements that “damage the Company, defame any individual or damage any person’s reputation.” Rules prohibiting harassment, verbal abuse, threats, and the like are valid, while rules prohibiting employee complaints about work conditions are not. The NLRB found Costco’s prohibition “clearly encompasses concerted communications protesting [Costco’s] treatment of its employees.” Policies that could be read to limit employee criticism of the company or its employees are likely to be viewed as invalid, even if some of the prohibitions pertain to threats and harassment.
In the Karl Knauz BMW decision, the NLRB struck down an employer’s social media policy for prohibiting “disrespectful” conduct and “language which injures the image or reputation of the [company].” As with the Costco case, the NLRB disapproved the portion protecting the company’s image. The NLRB scrutinized the context of the prohibition on “disrespectful” conduct. Because the rule, as a whole, could be read to prohibit protected, concerted activity, the NLRB found it to be unlawful, even though a simple “courtesy” rule would be acceptable otherwise.
Without commenting on it specifically, the NLRB also upheld the employer’s decision to discharge an employee for his postings on Facebook. The employee had posted comments and photographs about the inadequacy of the food being served at a BMW event and about an accident that occurred at the Land Rover dealership next door. The ALJ held that the postings about the food were protected, concerted activity because customers’ perceptions could influence sales and commissions, which are terms and conditions of employment. The postings about the accident were not protected. The company terminated the employee primarily because of the postings about the accident. Therefore, the ALJ, and ultimately the NLRB, upheld the employer’s decision to fire him for what the company deemed to be insensitive postings about a serious situation.
Taken together, these cases show the Board-level decisions will, in general, reaffirm the kind of analysis we have seen ALJs using in the last two years. While there may be differences of opinion as to how a reasonable employee might construe particular handbook language, the legal analysis at work is now NLRB precedent. We can expect to see the NLRB target more companies on this issue, so employers should take action now to ensure they are in compliance with the latest decisions.
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