Workplace Privacy Counsel : San Francisco Employment Privacy Law Lawyer & Attorney : Littler Mendelson Law Firm : Employment Related Privacy Issues

Policy Prohibiting Employees from Discussing a Co-Worker’s Health Condition

Even though the Health Insurance Portability and Accountability Act of 1996 (HIPAA) applies only to a relatively small portion of all health information collected by employers, i.e., health benefits information, the law’s substantial civil penalties and stiff criminal sanctions have instilled fear in the hearts of many HR professionals of any public communication of employee health information. The potential for mass disclosure through social media has stoked that concern, leading some employers to try to shut “loose lips” with a policy like the one in this case: “[E]mployees are prohibited from discussing private matters of members and other employees . . . includ[ing] topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.” The Board held that this policy violates the NLRA because all of the listed “private matters” relate to the terms and conditions of employment.

The Board’s holding does not mean, however, that employers can never discipline employees who use social media to gossip about a co-worker’s or supervisor’s health condition. The Board explained that employers are not required to sit on their hands when employees come into possession of health information “through access to company records in the course of their job duties.” In other words, an employer can promulgate a policy that prohibits employees whose job duties entail access to employees’ health information from disclosing that information in any manner, including publication in social media. 

Policy Prohibiting Employees from Discussing Their Compensation

Protecting information about employees’ compensation poses another vexing problem for employers. Competitors can gain significant advantage from learning how much an employer pays its employees, and many employees do not want their co-workers to know how much they earn. Yet, the Board struck down the employer’s policy admonishing employees that “payroll” information “may not be shared, transmitted or stored for personal or public use without prior management approval.” The Board reasoned that a reasonable employee would understand this policy to prohibit an employee, in violation of Section 7 of the NLRA, from discussing his or her own pay, which clearly is a term of employment, with co-workers.

The employer tried to save this policy by arguing that the reference to “payroll” information was intended to encompass only “the confidential business information component of payroll, such as budgeted payroll and expenses.” The Board rejected this argument not because a policy with that limited scope and intention would violate the NLRA, but rather because other company policies compelled the conclusion that the word “payroll” was intended to encompass an employee’s own compensation. The Board’s reasoning, by negative implication, suggests that an employer could promulgate a policy that prohibits employees from disclosing compilations of payroll data when properly characterized as confidential business information.

Policy Prohibiting Disclosure of Employees’ Contact Information

Employers often are concerned about protecting not only employees’ health and compensation information but also their personal contact information, which could be misused by a stalker, an abusive boyfriend or girlfriend, or an identity thief. Nonetheless, the Board rejected as violating the NLRA a policy that required employees to maintain the confidentiality of co-workers’ names, addresses, phone numbers, and e-mail addresses. The Board reasoned that employees have a protected right to use and disclose such information for “organizational purposes,” as long as the information is not obtained from the employer’s files. In other words, as with its holding regarding the employer’s prohibition on the disclosure of employee health information, the Board draws a distinction between information that employees learn “in the normal course of their work activity,” i.e., through discussions with co-workers, and information that employees learn from “their employer’s confidential or private records.” 

Notably, the Board did not take issue with the employer’s policy requiring employees to maintain the confidentiality of co-workers’ and customers’ Social Security numbers, customer account numbers, or credit card numbers. This information generally would not be used for “organizational purposes” and, therefore, an employer can require employees to keep that information confidential without running afoul of the NLRA. 

Policy Requiring Employees to Use “Appropriate Business Decorum” in Communications

The employer was able to save one challenged policy provision, and that victory could prove to be significant. The Acting General Counsel contended that the employer’s policy requiring employees to use “appropriate business decorum” in communications, including conversations, violates the NLRA because an employee “could” understand the policy to prohibit discussions regarding the terms and conditions of employment. Therefore, according to the Acting General Counsel, the employer had a duty “to define permissible conduct and clarify for employees that the rule does not prohibit employees from engaging in Section 7 activities.” The Acting General Counsel has taken a similar position in his Advice Memos with respect to policy provisions that urge employees to “be professional” or to “be respectful” when posting in social media. 

The Board rejected the Acting General Counsel’s argument. The Board reasoned that employers are allowed to establish rules intended to promote a “civil and decent workplace.” Consequently, as long as a reasonable employee would understand the rule, such as the employer’s rule requiring appropriate business decorum in communications, to be aimed at achieving that purpose, the fact that the rule might restrict protected activities in some circumstances is irrelevant. Under the Board’s reasoning and based on other cases cited in support of its decision, employers should be able to promulgate, without providing clarifying examples, policies that prohibit social media content that: (a) constitutes “insubordination . . . or other disrespectful conduct” to a supervisor; (b) is “disloyal, disruptive, competitive, or damaging;” or (c) “tends to bring discredit to, or reflects adversely on,” the employee, co-workers, or the company.

Image credit: Warchi

Each of the headings below reviews the General Counsel’s current position on a particular type of commonly used policy provision. Employers should carefully review their existing policies and any new policy in light of the General Counsel’s most recent report. With careful drafting and the use of examples and limiting language, employers should still be able to achieve their objectives of gaining limited control over the Wild West of social media content while staying within the parameters of the NLRA.

No Defamation/Non-Disparagement: No employer likes seeing its employees or organization trashed in social media, but, according to the General Counsel, a broad non-disparagement policy violates the NLRA on a per se basis because it could inhibit employees from making negative comments about the terms and conditions of their employment. For example, the General Counsel opined in the report that the following policy prohibition is illegal: “[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media.” The General Counsel reached the same conclusion on a policy which prohibits “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.”

While the General Counsel’s opinion sounds frustrating, employers should not despair. The General Counsel explains that by including non-disparagement policy language within a list of other forms of unprotected conduct, an employer’s non-disparagement policy will comply with the NLRA. To illustrate the point, the General Counsel pointed to the NLRB’s holding that a policy prohibiting “statements which are slanderous or detrimental to the company” was lawful when it “appeared on a list of prohibited conduct including ‘sexual or racial harassment’ and ‘sabotage.’” Following this authority, the General Counsel gave its stamp of approval in the report to a policy which “prohibited the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

Confidentiality: Protecting confidential information and trade secrets from competitors is critical to every organization. According to the General Counsel, however, a confidentiality policy is illegal if it would impinge on employees’ ability to discuss their wages and working conditions with others inside or outside the organization. Consistent with that reasoning, the General Counsel’s report rejected a provision in an employer’s social media policy that prohibited employees from “disclosing or communicating . . . confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.” By contrast, the General Counsel approved a policy provision that “prohibited employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients” as well as “‘embargoed information,’ such as launch and release dates and pending reorganizations.” The General Counsel approved of this policy language based on the following reasoning: “Considering that the Employer sells pharmaceuticals and that the rule contains several references to customers, patients, and health information, employees would reasonably understand that this rule was intended to protect the privacy interests of the Employer's customers and not to restrict Section 7 protected communications.”

The General Counsel’s distinction between the two confidentiality provisions suggests a potential litmus test for confidentiality language in a social media policy: if the policy reasonably could be read to prevent employees from disclosing the amount of their compensation to family members, the General Counsel likely would find the policy to be overbroad.” Employers should note that this same issue could apply to confidentiality agreements signed by hourly workers, and not just to confidentiality requirements in a social media policy.

Logos/Trademarks: Organizations understandably want to control use of their logo and trademarks. Nonetheless, a social media policy which prohibits “use of the company’s name or service marks outside the course of business without prior approval of the law department” is, according to the General Counsel, unlawful. The General Counsel takes the position that employees have the right under the NLRA to use the company’s name and logo “while engaging in protected concerted activity, such as in electronic or paper leaflets, cartoons, or picket signs in connection with a protest involving the terms and conditions of employment.” The General Counsel reasoned that such protected use of a company’s name and logo does not “remotely implicate[]” the company’s interests protected by trademark law, “such as the trademark holder’s interests in protecting the good reputation associated with the mark from the possibility of being tarnished by inferior merchandise sold by another entity using the trademark and in being able to enter a related commercial field and use its well-established trademark.”

This reasoning is wrong. An employee easily could damage brand reputation and engender customer confusion by, for example, creating a Facebook page with the corporate name and logo. At a minimum, an employer should be able to prohibit employees from using the company name or logo when engaging or depicting in social media any conduct which violates the Company’s policies or is unlawful; such a policy would not encompass activity protected by Section 7 of the NLRA. Employers also should consider consulting intellectual property counsel about logo and trademark issues and not necessarily develop a marketing strategy based solely on NLRA issues. However, the General Counsel’s analysis (which is not law, but rather the Office’s view of the law) should not be fully ignored either.

Employee Disclaimers: Social media policies commonly mandate that employees must include a disclaimer in any social media content that relates to the employer. For example, in one of the cases discussed in the General Counsel’s report, the employer’s social media policy required that employees “expressly state that their comments are their personal opinions and do not necessarily reflect the Employer’s opinions.” The General Counsel opined that this policy requirement violates the NLRA because it “would significantly burden the exercise of employees’ Section 7 rights to discuss working conditions and criticize the Employer’s labor policies.” Fortunately, employers can achieve a similar result with a policy that prohibits employees from representing in any way that they are speaking on the Company’s behalf without prior written authorization to do so.

It is worth noting that the General Counsel did approve an employee disclaimer requirement in the section of a social media policy addressing product promotions. The General Counsel explained that in context, this provision could not be read to interfere with Section 7 rights because the policy focused on product promotions and endorsements and was intended to avoid potential liability for unfair and deceptive trade practices under guidance issued by the Federal Trade Commission.

Discussions of Work-Related Concerns: The aphorism, “Don’t hang out your dirty laundry,” may seem antiquated but many employers still say just that in their social media policy. By way of illustration, one policy discussed in the General Counsel’s report “required employees to first discuss with their supervisor or manager any work-related concerns, and it provided that failure to comply could result in corrective action, up to and including termination.” The General Counsel concluded that this policy violated the NLRA because of the threat of discipline. Employers can avoid this potential pitfall by urging, but not mandating, that employees use internal channels, rather than social media, to resolve workplace concerns. In that regard, the General Counsel’s opinion is nothing new, but rather is in line with traditional NLRA law on protected, concerted activity in general.

Communications with the Media: Social media policies often tell employees not to discuss with the media their social media content related to the company. The General Counsel’s report finds such prohibitions illegal. (“An employer’s rule that prohibits employee communications to the media or requires prior authorization for such communications is therefore unlawfully overbroad.”) However, a similar report issued by the General Counsel on August 18, 2011, recognized that “a media policy that simply seeks to ensure a consistent, controlled company message and limits employee contact with the media only to the extent necessary to effect that result cannot be reasonably interpreted to restrict Section 7 communications.” In light of that principle, the General Counsel blessed the media policy in question because the “policy repeatedly stated that the purpose of the policy was to ensure that only one person spoke for the company” and even though “employees were instructed to answer all media/reporter questions in a particular way.” In other words, it appears that employers can still carefully craft a provision on media relations in a social media policy which complies with the NLRA.

“Unprofessional” Content: In several of the reported cases, the General Counsel took issue with policy terms that were undefined, vague, or subjective. These terms included prohibitions on “insubordination or other disrespectful conduct,” “inappropriate conversation,” “unprofessional communication that could negatively impact the Employer’s reputation or interfere with the Employer’s mission,” and “nonprofessional/inappropriate communication regarding members of the Employer’s community” as well as the requirement that social media activity occur in an “honest, professional, and appropriate manner.” Employers can achieve the intended objectives of this disfavored language by using terms that are defined in the social media policy or other policies or by providing examples of prohibited conduct with examples that do not include conduct protected by the NLRA.

Employee’s Self-Identification: Some employers have tried to protect their organization by telling employees not to identify their affiliation with the organization when engaging in social media activity unless there is a legitimate business reason for doing so. In its report, the General Counsel took the position that this type of policy violates the NLRA “because personal profile pages serve an important function in enabling employees to use online social networks to find and communicate with their fellow employees at their own or other locations.” Employers should not view the General Counsel’s position here as a particular setback. Telling employees not to mention their employer by name in a personal profile is akin to telling them not to do the same at a cocktail party; the rule would be honored in the breach.

Securities Blackouts: Publicly traded companies are rightfully concerned that employees may let slip on social media highly sensitive information about a corporate transaction, new product launch, or non-public financial information. Among the few policy provisions with which the General Counsel did not take issue was one which stated that the employer might “request employees to confine their social networking to matters unrelated to the company if necessary to ensure compliance with securities regulations and other laws.” The General Counsel reasoned that “employees reasonably would interpret the rule to address only those communications that could implicate security regulations,” as opposed to the terms and conditions of their employment.

Employer Disclaimers: In the wake of the NLRB’s aggressive position since the AMR case in late 2010 on social media policies and employee discipline based on social media conduct, many employment and labor law practitioners have recommended the inclusion of a disclaimer in social media policies. The disclaimer explains that the employer’s policies are not intended to interfere with employees’ rights under the NLRA. In its first public review of a disclaimer in a social media policy, the Board somewhat surprisingly took the position that such a disclaimer was ineffective. In that case, the disclaimer stated as follows:
 

[T]he policy [will] not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.

According to the General Counsel, this disclaimer could not “save” a policy provision prohibiting employees from posting “inappropriate” content because “an employee could not reasonably be expected to know that this language encompasses discussions the Employer deems ‘inappropriate.’” Given the detailed nature of the disclaimer in question, this conclusion suggests the General Counsel, and possibly the Board itself, will view skeptically any effort by an employer to rely upon a disclaimer to protect an otherwise overbroad social media policy. That is an unfortunate result for employers, as a disclaimer seemed to be the answer to keeping a policy simple and uncluttered, without violating the NLRA. Now employers should consider instead replacing such a disclaimer with a list of specific limitations or examples, such as those discussed above which can transform an otherwise overbroad (at least in the eyes of the General Counsel) non-disparagement provision into one that complies fully with the NLRA.

Becker’s rag on the Ultimate Driving Event did not stand alone. On the same day, he also posted about a potentially serious mishap at the nearby Land Rover dealership also owned by Knauz BMW. Becker described the drama on his Facebook page, alongside a photograph with the following comment: “This [photograph shows] what happens when a sales Person sitting in the front passenger seat (Former Sales Person, actually) allows a 13 year old boy to get behind the wheel of a 6000 lb. truck built and designed to pretty much drive over anything. The kid drives over his father’s foot and into the pond in all about 4 seconds and destroys a $50,000 truck. OOOPS!”

In deciding whether Knauz BMW violated the NLRA by discharging Becker, the ALJ agreed with the NLRB’s General Counsel that Becker’s Facebook comments about the food at the Ultimate Drive Event were protected concerted activity, a position previously expressed by the General Counsel in its August 2011 report on the NLRB’s social media cases which we discussed in an earlier blog post. The ALJ reasoned that Becker’s comments were protected because it was possible, albeit not likely, that the food selection could have had an impact on Becker’s commission-based compensation. In the words of the ALJ, “some customers [possibly] were turned off by the food offerings at the sales event and [perhaps] did not purchase a car because of it.” The ALJ also found that Becker’s Facebook posting was concerted activity — even though no co-worker participated in, or commented on, the post — because the post was the “logical outgrowth of” the criticisms by Becker and at least one other co-worker of the food selection during the sales force’s meeting with management before the event. This result demonstrates just how broadly the NLRB interprets the concept of “protected concerted activity” which cannot properly be the subject of employee discipline.

Notably, the ALJ rejected Knauz BMW’s argument that Becker’s Facebook post should lose its protection under the NLRA because the post disparaged the dealership. Without much analysis, the ALJ noted that the NLRB had previously rejected the same argument in cases where employees’ protected speech was mocking, sarcastic, satirical, ironic, demeaning or even degrading. It appears that an employee’s protected speech will need to reach a high level of injuriousness before the Board will strip that speech of the NLRA’s protections.

Although Becker had engaged in protected concerted activity, the ALJ still determined that Knauz BMW’s decision to axe Becker was lawful. The ALJ found persuasive the testimony of management employees that Becker’s facetious comments about the serious and potentially deadly Land Rover mishap triggered the termination decision. The ALJ then determined that this post did not constitute protected concerted activity because “it was posted solely by Becker,” “without any discussion with any other employee,” and “had no connection to any other employees’ terms and conditions of employment.”

The lesson for employers? Employees who post some protected social media content do not protect themselves with impunity from adverse employment action. Employers can rely on unrelated, unprotected social media posts to justify termination;they just need to be prepared to prove that the unprotected speech was the driving force behind the disciplinary decision.

When Not to Fire an Employee Based on a Social Media Post

The August 18, 2011, Memorandum summarizes four cases that concluded that the employer’s discipline violated the NLRA. In a nutshell, these cases involved the termination of one or more employees based on the following social media conduct:

•  While preparing for a meeting with management, an employee asked coworkers on her Facebook page for their reaction to another employee’s complaints about work quality and staffing levels at the employer;
• An employee complained on her Facebook page about her supervisor’s refusal to permit a union representative to assist her in responding to a customer complaint about the employee;
• A salesmen at a car dealership criticized on his Facebook page the dealership’s handling of a sales event intended to promote a new car model and posted mildly mocking photographs that included his coworkers;
• Employees posted on Facebook about the employer’s failure to withhold state income taxes, resulting in the employees’ receiving payment demands from state tax authorities.

In all of these cases, employees posted on their own Facebook page, on their own time, and using their own equipment.

When viewed as a group, these cases have a common thread that provides substantial insight into how the Board analyzes social media cases. Most importantly, the subject matter of each of these posts related to the terms and conditions of employment, the exercise of rights conferred by the NLRA, or other matters traditionally considered “protected activity” under the Boards’ precedent. The topics included: (a) preparation for a discussion with management about employees’ job performance and the employer’s staffing levels; (b) the right in a unionized workplace to union representation during an investigatory interview by the employer; (c) conduct by the employer (a sales event) that could have an impact on employees’ compensation (their sales commissions); and (d) the employer’s administration of income tax withholdings.

Of equal significance, in each of these situations, the General Counsel concluded that employees were collaborating, otherwise known as “concerted activity.” In the first case, the employee was seeking assistance from coworkers in preparation for a discussion with management. In the second case, the employee was discussing supervisory actions with coworkers who were her Facebook friends. In the third case, the employee was expressing the sentiment of his coworkers about the sales event. In the fourth case, employees were sharing concerns about the employer’s failure to withhold state income taxes. None of these cases could be said to involve individual gripes.

While the fulcrum of these cases is the General Counsel’s determination that the disciplined employees were discussing protected subject matters and doing so in concert with their coworkers, there is one other common thread that can help employers weigh risks when deciding whether an employee’s social media post justifies discipline. In each of the cases, the offending Facebook post was either the culmination of an on-going dispute with the employer or the continuation of a pre-existing conversation among employees. In contrast to these fact patterns, the Facebook posts discussed in our previous blog entry and upon which the Division of Advice relied to justify discipline were relatively spontaneous and had no real history behind them.

Profanity Generally Will Not Justify Discipline for Protected Concerted Activity

According to the General Counsel, the offending Facebook posts in these cases included “swearing and/or sarcasm,” use of a “short-hand expletive,” and references to management personnel as an “asshole” and a “scumbag.” Nonetheless, in each case, the General Counsel concluded that the employer’s termination violated the NLRA.

The General Counsel’s analysis in these cases seems to give employees a license to curse. In finding that an employee did not lose the NLRA’s protections after calling her supervisor a “scumbag,” the General Counsel relied on the following facts: (a) “the Facebook posts did not interrupt the work of any employee because they occurred outside the workplace and during nonworking time;” (b) “the comments were made during an online employee discussion on supervisory action;” (c) “the name-calling was not accompanied by verbal or physical threats;” (d) “the Board has found more egregious name-calling protected;” and (e) “the employee’s Facebook postings were provoked by the supervisor’s unlawful” conduct.

In social media cases, the first three or four factors listed above typically will be present. Thus, the Board effectively is telling employers that they must have a thicker skin when it comes to employees’ raunchy social media posts.

Disclaimers and Carefully Crafted Policies Are Critical

Throughout the August 18, 2011, Memorandum, the General Counsel identified social media policy provisions that the General Counsel deemed overbroad and in violation of the NLRA. At first blush, these determinations are portentous for employers because employers routinely include the challenged provisions in their social media policy. However, the August 18, 2011, Memorandum suggests — at least implicitly — how employers can retain these commonly used policy provisions without running afoul of the NLRA.

The list of policy provisions found to be overbroad is lengthy but worthy of repetition. The list includes the following:

1. Inappropriate Discussions: Prohibition against “inappropriate discussions about the company, management, and/or coworkers;”
2. Defamation: Prohibition on any social media post that “constitutes embarrassment, harassment or defamation of the [company] or of any [company] employee, officer, board member, representative, or staff member;”
3. Disparagement: Prohibition against “employees making disparaging comments when discussing the company or the employee’s superiors, coworkers and/or competitors;”
4. Privacy: Prohibition on “revealing, including through the use of photographs, personal information regarding coworkers, company clients, partners, or customers without their consent;”
5. Confidentiality: Prohibition on “disclosing inappropriate or sensitive information about the Employer;”
6. Contact Information: Prohibition on “using the company name, address, or [related] information on [employees’] personal profiles;”
7. Logo: Prohibition on using “the Employer’s logos and photographs of the Employer’s store, brand, or product, without written authorization;”
8. Photographs: Prohibition against “employees posting pictures of themselves in any media . . . which depict the Company in any way, including company uniform [or] corporate logo.”

Removing all of the prohibitions described above would eviscerate most social media policies. Fortunately, such drastic action does not appear to be necessary.

In finding these rules unlawful, the General Counsel emphasized not only their overbreadth (i.e., “the [rules] utilized broad terms that would commonly apply to protected criticism of . . . terms and conditions of employment”), but also that “the rule[s] contained no limiting language to inform employees that [the rules] did not apply to Section 7 activity.” This italicized language suggests that the rules quoted above will not violate the NLRA as long as the policy contains a disclaimer which explicitly informs employees that the policy will not be construed or applied in a manner that improperly interferes with employees’ rights under Section 7 of the NLRA.

The General Counsel also provided some guidance for policy drafting by rejecting challenges to several other policy provisions. One upheld policy, for example, provided that “no employee could ever be pressured to ‘friend’ or otherwise connect with a coworker via social media.” The General Counsel reasoned that this policy was “sufficiently specific,” “clearly applied only to harassing conduct,” and could not be read to prohibit employees from friending for purposes of engaging in activity protected under the NLRA.

In a second example, the General Counsel approved of a policy that required employees to “maintain confidentiality about sensitive information” and to direct all media inquiries to the company’s public affairs office after stating that the employee was not authorized to comment. The General Counsel determined that this policy did not violate the NLRA because it was intended only “to ensure a consistent, controlled company message,” was not a blanket prohibition on all contact between employees and the media, and “did not convey the impression that employees could not speak out on the terms and conditions of their employment.”

These examples suggest that an employer can increase the likelihood that its social media policy will survive the NLRB’s scrutiny if the policy emphasizes the legitimate purposes that it seeks to achieve, such as protecting the employer’s good will and brand reputation. In addition, restrictions in the policy on employees’ social media conduct should, where practicable, be narrowly tailored to meet those legitimate objectives.

Photo credit: TommL

Two of the Advice Memoranda draw the same bright line rule: an employee who communicates about work through Facebook but only with family or friends cannot invoke the protections of the National Labor Relations Act (NLRA) to avoid dismissal. In one of these two cases, an employee of a residential home for homeless individuals with significant mental illness posted facetious comments about residents on her Facebook wall. Only a personal friend responded to the Facebook posts, and none of the employee’s coworkers were her Facebook friends. The General Counsel concluded that the employee’s Facebook posts were not protected because the employee was merely communicating with personal friends about work. In addition: (a) her posts did not relate to the terms or conditions of employment; (b) the employee did not discuss her posts with coworkers, and no coworkers responded to them; and (c) the employee was not seeking to induce collective action and her posts were not an outgrowth of collective concerns.

The second case was a slightly tougher one. There, a bartender complained through Facebook to his step-sister about this employer’s policy barring him from sharing in tips given to servers even though the bartenders helped to serve food. The General Counsel concluded that the bartender could not rely on the NLRA to reverse his firing, even though the post related to the terms of employment, for the same reasons that the employee of the residential home could not do so – the employee did not discuss his post with coworkers and the employee was not seeking to induce collective actions.

The third case provides the most useful guidance, drawing the line between individual gripes (unprotected) and collective activity (protected). In that case, the employee made the following comments about her store’s Assistant Manager:

I swear if this tyranny doesn’t end in this store, they are about to get a wakeup call because lots are about to quit.
* * * *
[Assistant Manager] is being a super mega puta! Its retarded I get chewed out cuz we got people putting stuff in the wrong spot and then the customer wanting it for that price . . . . I’m talking to [Store Manager] about this shit because if it don’t change [Company] can kiss my royal white ass.

The General Counsel concluded that the employer could lawfully fire the employee because the posts expressed only an individual gripe, i.e., the employee’s own “frustration regarding his individual dispute with the Assistant Manager over mispriced or misplaced sale items.” The General Counsel also concluded that the responses to the posts by the employee’s coworkers did not convert these individual gripes into collective action because those comments reflected the coworkers’ understanding that the employee was speaking only on behalf of himself. One coworker laughed (“bahaha like!”); one coworker asked why the employee was so “wound up;” and a third expressed only emotional support (i.e., “hang in there”).
In each of the three Advice Memoranda, the General Counsel referred to the same or similar legal standards. These standards also provide useful guidance and include the following

• Protected: When the employee “acting with or the authority of” coworkers (a) “seeks to initiate, induce or prepare for group action,” or (b) “brings truly group complaints to the attention of management.”
• Protected: The employee’s activities are “the logical outgrowth of concerns expressed by the employees collectively.”
• Unprotected: The employee is engaging in activity “solely by and on behalf of the employee himself.”
• Unprotected: The employee’s comments are “mere griping” as opposed to “group action.”

While these guidelines and the Advice Memoranda obviously do not address the full range of Facebook conduct that intersects with the workplace, they do at least provide some guideposts for employers when deciding whether to discipline or fire an employee based on his or her obnoxious or offensive Facebook post.

Last week, the NLRB’s Hartford Regional Director, who was responsible for filing the Facebook case, provided useful information about the Board’s intentions, both in comments and in handout materials, while speaking on a panel for the Connecticut Bar Association. Below are some of the highlights:

• Protected Concerted Activity: In a discipline case, the Board will take a very broad view when deciding whether the employee’s social media activities constituted “protected concerted activity” under the NLRA. The Regional Director’s handout states, “It doesn’t take much to establish the concerted nature of the discussion, so long as it involved or touched upon a term or condition of employment,” and “anything short of physically threatening activity will likely be protected.”
• Recent Cases: The NLRB continues to be active in the area. The handout provides four examples of recently filed complaints, or threatened complaints, involving social media in addition to the case against AMR. These cases show just how broadly the Board construes “protected concerted activity.” They involved, according to the handout, negative comments about a supervisor posted on Facebook, a posted cartoon video about a dispute between two departments, a Facebook discussion about the employer’s withholding of taxes, and a Facebook discussion about the employer’s decision to fill an open position with an outside, rather than an inside, applicant.
• Disclaimers: The Hartford Region will consider a disclaimer when evaluating whether an employer’s social media policy violates the NLRA. According to the Regional Director, the disclaimer should become more specific as the policy becomes broader and more general. For policies that are narrow and easily understood, a disclaimer that the policy is not intended to violate the NLRA may suffice. For broader policies that employees might reasonably believe apply to protected concerted activity, the Region will require a disclaimer which states either that the rule does not apply to “discussions or activities involving your terms and conditions of employment” or that the policy does not apply to “discussions and activities involving your wages, hours and working conditions.” Notably, the Regional Director stopped short of taking the position that to be effective a disclaimer must specifically mention union activity, as another NLRB region recently insisted.
• Litigation Strategy: In the AMR case, the Region subpoenaed online posts of AMR supervisors in an effort to obtain evidence that they made comments about their subordinates similar to the comment that the fired employee had made about her supervisor. In addition, the Region repeatedly told the fired employee to stop posting on Facebook while the litigation was pending (but she ignored the request).

In a development that could resonate beyond social media, the Regional Director also revealed that the Regions, at the direction of the Board’s Acting General Counsel, are filing complaints to set the stage to reverse the Board’s December 2007 decision in Register Guard. In that case, a Republican-dominated Board held that an employer can lawfully impose a broad ban on employee’s use of the corporate e-mail system for solicitations and other non-business reasons as long as the policy on its face does not discriminate against union activity and is enforced in a non-discriminatory manner. A reversal of Register Guard could severely crimp employers’ ability to regulate employees' social media activity while using corporate electronic resources.

In another recent development, the NLRB’s Acting General Counsel added social media to the list of subjects in which he is taking particular interest. While there was virtually no commentary or explanation accompanying this development, it likely reflects that the Board is pursuing a uniform, nationwide strategy on social media.

In a third development in April, the Board threatened to file a complaint against Thomson Reuters for allegedly disciplining an employee based on a Twitter post. The employer had invited employees to post on a corporate-sponsored Twitter feed their thoughts on how the company could be made the best place to work. An employee who also is the Newspaper Guild’s representative tweeted, "One way to make this the best place to work is to deal honestly with Guild members." The Board appears to take issue with the fact that, in response to the post, the employee’s supervisor called to remind her about the company’s policy prohibiting employees from posting content that would damage the company’s reputation. According to a report in the New York Times, an NLRB source stated that the Board viewed this call as potentially having a chilling effect on the employee’s exercise of her rights under the NLRA. On May 2, 2011, it was announced that Thomson Reuters and the Newspaper Guild reached a tentative settlement of their disagreements, heading off an NLRB complaint. If a complaint had been filed, it would have been the first NLRB action based on a Twitter post.

What should employers do?

There can be no question that the Board appears to want to take the law in a direction that will open social media to virtually unfettered use by employees to communicate about work conditions, defined very broadly. However, employers should also recognize that social media buzz (including blogs like this one), press releases, and unproven allegations may be prematurely persuading employers to loosen social media polices that were drafted before the AMR case. As far as we are aware, there has not been a single fact-finding hearing to date in a case where an employee was disciplined for social media conduct, let alone a published decision by even an administrative law judge. The actual limits on an employer’s ability to regulate the use of social media by its employees are still to be developed and refined by the NLRB and by the federal appeals courts that will review its decisions.

Given this uncertainty, employers should continue to watch developments in the area closely, consult counsel before imposing discipline based on social media activity, and review their social media policies. If the policy contains any provision that could be read to limit employees’ ability to communicate about the terms or conditions of employment while using the employee’s own resources during non-working hours, strongly consider adding a disclaimer to the policy. The content of the disclaimer should vary depending upon the nature of the policy. A starting point would be a disclaimer to the effect that the policy will not be applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act. A more robust disclaimer might be advisable depending upon the breadth of the policy, whether the employer already is unionized, and the degree to which the employer, or the employer’s industry, has been the focus of organizing activity.
 

By issuing a press release (pdf) to announce the settlement of its complaint against AMR, the Board is likely to create the same type of buzz as it created by the press release announcing the complaint. In the press release announcing the settlement, the NLRB highlights those terms of the settlement likely to have the most significant impact on employers drafting or revising their social media policy. More specifically, the NLRB’s press release states the following:

Under the terms of the settlement, . . . the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”

Importantly, there was no express finding by any administrative law judge or other court that AMR’s policy was “overly-broad,” nor does the NLRB’s press release identify the specific policy language that the Board considered to fit this characterization. However, the press release may be referring to the social media policy language cited in the original NLRB complaint: “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors.”

In light of the NLRB’s pronouncement, employers whose social media policy contains similar language should analyze carefully whether to carve out NLRA rights under that policy through the use of a disclaimer. Before taking disciplinary action based on the policy, employers should also consider whether an employee’s specific social media activity constitutes protected, concerted activity under the NLRA. At the same time, employers should keep in mind that a range of conduct in violation of this type of policy should not be protected by the Act. In addition, the AMR settlement has no precedential value. However, the AMR case appears to signal the current NLRB’s intention to bring claims seeking to protect employees’ social networking activity even if such activity pushes the boundaries of respect and non-disparagement in the workplace.

Photo credit: sjlocke

The employer's mistakes in Register-Guard were that (a) it did not enforce its policy against other non-business solicitations, even though the policy prohibited all "non-job-related solicitations;" and (b) it enforced the policy only when the solicitation in question was on behalf of a union.

Whether the Obama Board will continue to allow employers to ban union communications on their e-mail systems remains uncertain. Regardless, employers should consider the following:

• Employers can impose broad restrictions, such as e-mail only for work-related purposes, even if the prohibition incidentally interferes with communications that might otherwise be protected by Section 7 of the National Labor Relations Act as long as the policy on its face does not discriminate against union activity.

• Employers can draft the policy in a manner that will capture union-related activities in addition to union solicitation.

• Employers should confirm that legitimate, non-discriminatory justifications exist for their line drawing, such as protecting against computer viruses, dissemination of confidential information, preventing losses of productivity, preserving server space, and avoiding company liability for employees' inappropriate e-mail.

• Before disciplining an employee for violating the policy by engaging in union-related activity, confirm that the communication, in fact, violated the policy. Moreover, check that other employees who have engaged in similar conduct also have been disciplined.

• Implement procedures to ensure that the policy is enforced in a non-discriminatory manner.

This entry was authored by Laurent R. G. Badoux and Philip L. Gordon.

For additional analysis of this development, see Littler’s ASAP “The D.C. Circuit Reminds Employers of the Perils of Selectively Enforcing Their Solicitation and E-Mail Policies Against Union-Related Activities” by Laurent R.G. Badoux, Jennifer L. Mora and Kathryn E. Siegel.
 

Under prior precedent, the Board would find “discrimination” where, for example, an employer disciplined an employee for using corporate resources to send union-related e-mail but permitted any other e-mail communications unrelated to work, such as invitations to bridal showers, recruiting for fantasy football leagues, or solicitations for charitable contributions.  Because almost every employer, upon close scrutiny, allows some e-mail unrelated to work — even if the “official” policy prohibits e-mail unrelated to work – this definition of “discrimination” effectively prevented employers from enforcing restrictions on union-related communications using corporate e-mail systems.

The Board overruled this prior precedent, explaining that “unlawful discrimination consists of disparate treatment of activities or communication of a similar character because of their union or other Section 7-protected status.”  The Board provided several examples to illustrate this much narrower definition of “discrimination”:  “an employer clearly would violate the [NLRA] if it permitted employees to use e-mail to solicit for one union but not another, or if it permitted solicitation by antiunion employees but not by prounion employees.”  By contract, the Board explained, any of the following policies would be permissible (i.e., non-discriminatory), even if the policy incidentally interfered with union communications:

Ø      A policy permitting only business-related communications

Ø      A policy barring all solicitations

Ø      A policy permitting only charitable solicitations

Ø      A policy permitting solicitations only of a personal nature

The one remaining catch is that an employer’s motivation for line-drawing can not be anti-union animus.  In other words, an employer can not promulgate a policy that permits only charitable solicitations as a subterfuge for suppressing union-related communications over the corporate e-mail system.

What does Guard Publishing mean, in practical terms, for employers?

First, existing corporate e-mail policies most likely do not need to be revised (except in the unlikely event that the policy expressly prohibits union-related communications while permitting communications related to other membership organizations).  Employers should review their existing polices to ensure that they comply with the Board’s decision in Guard Publishing.

Second, employers who revise their e-mail policy, or prepare one for the first time, can impose broad prohibitions, such as e-mail only for work-related purposes, even if the prohibition incidentally interferes with Section 7 communications.

Third, when promulgating a new or revised e-mail policy, employers should have legitimate, non-discriminatory justification for their line drawing, such as preserving server space, protecting against computer viruses, dissemination of confidential information, preventing losses of productivity, and avoiding company liability for employees’ inappropriate e-mail.

Fourth, before disciplining an employee for using corporate e-mail to communicate about union-related activities, an employer should confirm that the communication, in fact, violated existing policy.  In Guard Publishing, the NLRB found that the employer had violated the NLRA by disciplining an employee who sent an e-mail which did relate to union matters but did not solicit employees to join the union and, therefore, did not violate the newspaper’s policy barring “non-job-related solicitations.”

Fifth, employers can discipline employees for using corporate e-mail to send union-related communications in violation of the employer's e-mail policy as long as employees engaged in similar conduct also are disciplined.  In other words, an employee can be disciplined for soliciting union participation only if employees who solicit participation in other membership organizations also are, or will be, disciplined.  Employers should implement procedures to ensure that they enforce their e-mail policy in a non-discriminatory manner.

The Board’s decision may be appealed. We will continue to comment on developments in this important case.  (For more in-depth analysis of this decision, see Littler ASAP "NLRB Rules That Employers May Implement a Corporate E-mail Policy That Has the Effect of Barring Union-Related Communications" by Philip Gordon and Michael Mankes.)