Many employers mistakenly believe that the National Labor Relations Act (NLRA or Act) and its enforcing arm, the National Labor Relations Board (NLRB or Board), are only relevant to unionized workplaces. However, in an apparent effort to assert their relevance, the NLRB has issued a series of decisions in 2012 challenging common policies and business practices in nonunion workplaces relating to social media, at-will employment, and confidentiality in investigations.
Section 7 of the NLRA guarantees most private sector employees the right to organize and “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Thus, Section 7 protects the rights of both union and nonunion employees to discuss their wages, hours, and other terms and conditions of employment. This includes protecting employees’ rights to criticize their employer, superiors, co-workers or discuss non-public, sensitive, or personal information related to terms and conditions of employment.
Section 8(a)(1) of the Act makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of those rights. With this background, the Board is sending a strong message that employers must avoid drafting overbroad or ambiguous policies that could be construed as infringing on employees’ Section 7 rights.
The increasing use of social media has created a variety of practical challenges for employers. Employee communication through Facebook, Twitter, LinkedIn, and MySpace instantly broadcasts both innocent gripes about the workplace as well as confidential and possibly damaging information to potentially hundreds of thousands of people around the world. However, in an effort to protect a company’s reputation, employers have sometimes unreasonably placed limits on what, when, and how employees can post such information. The Board has, therefore, warned that such overbroad policies run the risk of violating employees’ rights to free speech and to engage in protected concerted activity, as defined under Section 7.
In its first decision on an employer’s social media policy, the NLRB deemed Costco Wholesale Corp.’s electronic posting rules overly broad. The electronic posting rule at issue, found in the Company’s handbook, prohibited employees from making statements that “damage the Company, defame any individual or damage any person’s reputation.”
Then on September 25, 2012, a Board judge ruled that EchoStar Corp.’s social media policy violated federal law by “chilling employees’ rights to join together for mutual aid and protection.” The policy in question prohibited employees from making “disparaging or defamatory comments about EchoStar, its employees, officers, directors, vendors, customers, partners, affiliates, or … their products/services,” on social media sites. The judge took issue with the potentially broad term “disparaging” as well as the ban on employees using social media sites with EchoStar resources or on company time.
These decisions follow a series of reports outlining the Board’s views on how the Act applies to employer social media policies and the limits to an employer’s ability to react to such posts. In the prior guidance from the Board’s counsel, both a rule prohibiting disparaging comments about the employer and a policy forbidding unprofessional communications were found unlawful. In the Costco decision, the Board determined that the policy at issue was too broad because employees could read it as a ban on protesting the company’s treatment of its workers.
These decisions highlight the importance of reviewing your social media policy to eliminate broad prohibitions that may interfere with employees’ rights to discuss their working conditions. Any prohibitions on employee social media behavior should be narrowly drawn. Social media policies should also provide specific examples of clearly unprotected activity so that employees cannot interpret the rules as prohibiting Section 7 activity.
In another important decision affecting all businesses, the Board held that a company’s routine policy or practice of asking an employee not to discuss with co-workers matters that are under investigation violates the NLRA.
On July 30, 2012, the Board issued its opinion in Banner Health System d/b/a Banner Estrella Medical Center and James A. Navarro, finding that the employer violated Section 8(a)(1) of the National Labor Relations Act by maintaining and applying a rule prohibiting employees from discussing ongoing investigations of employee misconduct. The Board held that maintaining and applying a blanket confidentiality rule to protect internal investigations impermissibly infringes on employees’ Section 7 rights. Thus, a company policy that prohibits employees from discussing ongoing investigations of employee misconduct violates the NLRA unless the employer shows that it has “a legitimate business justification that outweighs employees’ Section 7 rights.”
Confidentiality admonitions must still play a role in workplace investigations as confidentiality encourages witnesses to cooperate and be forthright, as well as limits chances for retaliation to occur. However, employers and human resource professionals may want to review their internal policies and their standard practices to avoid unduly restricting employees’ Section 7 rights and be prepared to prove that any confidentiality restriction is necessary to further a legitimate business need.
Finally, in Flex Frac Logistics, LLC (Sept. 11, 2012), the Board struck down a provision in the company’s at-will employment agreement that prohibited employees from disclosing “confidential information,” including “personnel information,” to individuals “outside the organization.” The Board held that the provision necessarily prohibited employees from discussing the terms and conditions of their employment with union representatives.
This trend by the Board to involve itself in what were previously considered basic employment policies and practices will likely continue. The message from the Board is: broader is not better. Employers should carefully review their current policies to limit employee prohibitions in order to protect against allegations of interfering with employees’ rights to discuss the terms and conditions of employment.