United States: Social Media And The NLRB (Part 2): Employment Policies – The Chilling Of Concerted Activity

This article is part of a series: Click Social Media and the NLRB (Part 1): The NLRB Intervenes in Social Media for the previous article.

Originally published October 5, 2011

The "mere maintenance" of a policy or practice that tends to chill employees' exercise of their right to engage in concerted activity violates the National Labor Relations Act (Act), according to the National Labor Relations Board (NLRB) in Lafayette Park Hotel. Thus, if the policy or practice "explicitly restricts activities protected" by the Act, it is unlawful. In addition, as the NLRB found in Lutheran Heritage, even if the policy or practice does not do so, it still is unlawful if any one of the following is true:

  1. Employees would reasonably construe the policy or practice to restrict or prohibit concerted activity.
  2. The policy or practice was promulgated in response to union activity.
  3. The policy or practice is applied to restrict protected concerted activity.
  4. The NLRB has issued three decisions applying these principles to social media – Sears Holdings (Roebucks), Lee Enterprises, Inc., and Salon/Spa at Boro, Inc. It also has filed several complaints against businesses alleging that their policies or practices unlawfully restrict concerted activity – including in American Medical Response of Connecticut, Inc., Healthcare Ventures of Ohio, LLC, and Ingham Regional Medical Center. And the NLRB recently discussed several additional cases (without identifying the employers) in a Report of the General Counsel (Report).

    As the following discussion of these cases shows, general employment policies (as well as social media policies) can unwittingly create legal liability. Businesses therefore should review all their policies to determine whether they could be viewed as chilling concerted activity, and adopt social media policies that comply with NLRB regulations.

    In Sears, the company adopted a social media policy that prohibited employees from engaging in a variety of conduct, such as discussing confidential information, making sexual comments, using obscenity, and disparaging a person based on a protected status. However, the portion of the policy at issue prohibited employees from criticizing Sear's "products, services, executive leadership, [and other] employees." While that portion of the policy could chill concerted activity, the NLRB found that it was not unlawful.

    A policy must be given a "reasonable reading," without "reading particular phrases in isolation." Just "because a [policy] could conceivably be read to restrict [concerted] activity" does not mean the policy is unlawful. It was important to the NLRB that the policy in Sears "covers a list of proscribed activities, the vast majority of which are clearly not protected." Also, "sufficient examples and explanation of purpose" were given to ensure that a "reasonable employee [would] understand" that the policy did not prohibit concerted activity. Although this is a beneficial decision for businesses, for the reasons discussed below, the outcome in this case is somewhat inconsistent with the more recent position of the NLRB in the Report.

    In Lee Enterprises, the company instructed the employee that he was "not allowed to tweet about anything work related" after discovering some inappropriate work related tweets. The NLRB concluded that this was not an unlawful policy or practice because the instruction was "made solely to the [employee] in the context of discipline, in response to specific inappropriate conduct, and not communicated to any other employees or proclaimed as 'new rules.'"

    In Salon/Spa, the employer's general policies prohibited negativity at work, and the employer specifically told employees to "confine their remarks to 'positive' comments" on social media sites. The employer also warned employees "not to respond to former employees" and to "be careful" what they say in social media, because "it could hurt [the] business." The NLRB concluded that these practices did not unlawfully restrict concerted activity because they were "educational and almost parental in nature," and "not coercive."

    While the businesses in Sears, Lee Enterprises and Salon/Spa prevailed, in other recent cases, businesses have had to settle to avoid highly publicized legal battles and potential liability. For example, the Internet policy at issue in American Medical prohibited employees from making disparaging comments when discussing the company, supervisors, or other employees, and from engaging in "offensive conduct" and "rude or discourteous behavior." The NLRB asserted that the policy was unlawful because it "contained no limiting language to inform employees that it did not apply to [concerted] activity." The employer settled with the NLRB by agreeing to "revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their ... working conditions with co-workers and others while at work, and that they would not discipline or discharge employees for engaging in such discussions."

    The policy at issue in Healthcare Ventures prohibited employees from disclosing information about wages, corrective action, and performance. The NLRB asserted that the employer interrogated an employee about Internet discussions he had concerning the termination of former co-workers. To settle the case, the employer agreed to rescind this policy, and refrain from adopting or enforcing any policy restricting employees from discussing wages, corrective action, performance, or other terms of employment with co-workers.

    In Ingham Regional, the NLRB asserted that the employer had unlawfully terminated an employee for discussing working conditions with a co-worker during off-duty hours pursuant to a policy that prohibited certain use of cell phones and other personal communications equipment. Under the settlement agreement, the employer agreed to reinstate the employee and refrain from applying its policies in a manner that restricts employees from discussing working conditions.

    In August 2011, the NLRB published a Report summarizing its position with respect to social media. While couched in terms of educating businesses, the Report clearly stakes a claim for the NLRB in this area, and forewarns businesses about the extent to which the NLRB will go to protect social media as concerted activity.

    The Report summarizes four additional cases involving social media policies that the NLRB determined were unlawful.

  5. A restaurant maintained a policy about "internet blogging, chat room discussions, e-mail, text messaging, or other forms of communication" preventing employees from "revealing confidential and proprietary information about the employer, or engaging in inappropriate discussions about the company, management, and/or coworkers."
  6. A hospital maintained a policy prohibiting "any communication or post that constituted embarrassment, harassment or defamation of the hospital or any employee, officer, board member, representative, or staff member" and "any statements that lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff or employees."
  7. A supermarket had a social media policy that "precluded employees from revealing, including through photographs, personal information regarding coworkers, company clients, partners, or customers," and from using the "logos and photographs of the employer's store, brand, or product."
  8. An employer's social media policy "prohibited employees on their own time from using [social media] to talk about company business on their personal accounts" and "from disclosing inappropriate or sensitive information about the employer" on social media.

The NLRB found these policies unlawful on the basis that employees would believe that they restricting conduct protected as concerted activity. It reasoned that all the policies (A) "utilized broad terms that would commonly" encompass protected activity, (B) "did not define" or give "specific examples" of unprotected conduct sought to be prohibited, and (C) did not contain any language "that would exclude [concerted] activity" from the policies.

While the policies at issue in the NLRB's Report are somewhat different than the policy at issue in Sears, the variations in the language of the policies do not justify the contrary results. This signals a broadening of the NLRB's position with respect to employment and social media policies unlawfully impairing the exercise of concerted activity. As a result, businesses should review all their policies in light of the foregoing cases to determine whether their policies could be perceived by the NLRB as chilling concerted activity, and businesses should adopt specific social media policies that comply with the current state of the law.

Cameron Shilling is a partner at McLane, Graf, Raulerson & Middleton and leads McLane's Privacy and Data Security Group.

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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This article is part of a series: Click Social Media and the NLRB (Part 1): The NLRB Intervenes in Social Media for the previous article.
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