October 03, 2011
By Jeffrey S. Klein, Nicholas J. Pappas, Andrea Y. Loh, and John P. Sullivan
Employees frequently engage in discussions regarding issues affecting the workplace on social networking websites such as Facebook, Twitter and LinkedIn. Because these discussions may involve statements that negatively affect employers, last year we recommended that employers adopt policies that “both educate employees as to the company’s expectations of the appropriate norms for online behavior, and give managers and HR personnel guidelines on how to prudently leverage the information obtained from social-networking sites.”[i] One issue that has been the subject of much discussion recently with respect to such policies is the question of whether discipline imposed because of an employee’s statements on a social networking website violates the employee’s rights under Section 7 of the National Labor Relations Act (“NLRA”). Section 7 of the NLRA creates a right for private-sector employees who are covered by the NLRA,[ii] whether unionized or not, “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” National Labor Relations Act § 7, 29 U.S.C. § 157 (2006).
On August 18, 2011, the Office of the General Counsel (“OGC”) of the National Labor Relations Board (“NLRB”) released a report discussing the application of Section 7 to social networking activity by employees. In that report, the OGC catalogued a variety of cases being prosecuted involving the OGC’s application of Section 7 in various circumstances. Of greatest significance to private employers, the OGC’s report asserted that certain policies regarding employees’ use of the social media which prohibit harassing or otherwise offensive communications may violate employees’ Section 7 rights. The OGC reasoned that such policies have the potential to “chill” employees’ exercise of their rights. This article examines several cases prosecuted in recent years by the OGC and proposes policy language employers may wish to add to their social networking policies to avoid any unintended infringement of employees’ legitimate Section 7 activities.
NLRA § 7
Section 8(a)(1) of the NLRA prohibits an employer from engaging in conduct that “interfere[s] with, restrain[s], or coerce[s] employees in the exercise of the rights guaranteed in Section 7.” In determining whether an employer policy violates Sections 7 and 8(a)(1) of the NLRA, one factor that the NLRB considers is whether the policy “would reasonably tend to chill employees in the exercise” of their Section 7 statutory rights. Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998). “If the rule does not explicitly restrict activity protected by Section 7, the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage, 343 N.L.R.B. 646, 647 (2004).
Recent OGC Challenges
Two recent OGC opinions illustrate the Office’s increasingly aggressive stance toward social media policies that target employees’ use of harassing and offensive language. In the first case, arising out of the discharge of an employee over Facebook postings she made that were derogatory toward her supervisor, the OGC issued an Advice Memorandum concerning the lawfulness of the American Medical Response of Connecticut’s (“AMR”) blogging and internet posting policy. Memorandum from Barry J. Kearney, Associate General Counsel, Nat’l Labor Relations Bd. Div. of Advice, to Jonathan B. Kreisberg, Regional Director, Nat’l Labor Relations Bd. Region 34, No. 34-CA-12576 (Oct. 5, 2010).[iii] The policy at issue prohibited employees from “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.” Id. at 5. The AMR employee handbook likewise prohibited the “use of language or action that is inappropriate in the workplace . . . of a general offensive nature; and rude or discourteous behavior to a client or coworker.” Id. Upon examination of these policies, the OGC found that the Regional Director for Region 34 should allege that both of the AMR’s policies violated Section 8(a)(1) because employees could reasonably construe the provisions as prohibiting Section 7 activity. Specifically, the OGC found fault with both policies’ proscription of “a broad spectrum of conduct” while at the same time failing to provide limiting language that would remove the rule’s “ambiguity” as to whether it prohibited Section 7 activity. Simply maintaining such a rule, according to the OGC, is sufficient to violate Section 8(a)(1). Id. at 11.
In another case, the OGC likewise determined that a hospital’s social media, blogging, and social net - working policy prohibiting harassing and defamatory communications violated Section 8(a)(1) for reasons similar to those cited in AMR. Here, a nurse was reprimanded and terminated for Facebook posts in which she had “talked badly about the hospital” in violation of the hospital’s social media policy. The specific social media rules at issue were incorporated into an employee handbook, the first of which prohibited “any communication or post that constitutes embarrassment, harassment or defamation of the hospital or of any hospital employee, officer, board member, representative, or staff member.” Nat’l Labor Relations Bd., Office of the Gen. Counsel, Report of the Acting General Counsel Concerning Social Media Cases 19 (2011).[iv] The second rule at issue similarly prohibited statements lacking truthfulness or that might damage the reputation or goodwill of the hospital, its staff or employees. The OGC concluded that the provisions of the social media policy were unlawful as they “included broad terms that would commonly apply to protected [Section 7 activity],” yet failed to define the “broad terms” or “limit them in any way that would exclude Section 7 activity.”
These recent OGC opinions stand in stark contrast to case law evaluating similarly worded employer policies that have arisen outside the context of employees’ social media usage. For example, in Adtranz ABB Daimler-Benz Transp., N.A., Inc. v. NLRB, 253 F.3d 19, 25 (D.C. Cir. 2001), the Court of Appeals for the District of Columbia Circuit examined an employer’s policy prohibiting the use of “abusive or threatening language to anyone on company premises.” The court vacated the NLRB’s determination that the policy had the “unrealized potential to chill the exercise of protected activity [because it] could reasonably be interpreted as barring lawful [Section 7 activity].” The Court reasoned that the NLRB’s findings were “not reasonably defensible . . .[and that] the Board’s position that the imposition of a broad prophylactic rule against abusive and threatening language is unlawful on its face is simply preposterous.” Id. at 25–26, 28. The court took issue with the NLRB’s “remarkabl[e] indifferen[ce] to the concerns and sensitivity which prompt many employers to adopt [similar rules].” The court described an employer’s potential liability under both federal and state laws “should they fail to maintain a workplace free of racial, sexual, and other harassment,” and reasoned that “any reasonably cautious employer would consider adopting the sort of prophylactic measure contained in the Adtranz employee handbook.” Id. at 27.
Finally, the Adtranz court found that under current law, “the only reliable protection is a zerotolerance policy . . . [and that] to bar, or severely limit an employer’s ability to insulate itself from such liability is to place it in a ‘catch 22’.”
Two years later, the Court of Appeals for the District of Columbia Circuit again upheld an employer policy that prohibited “insubordination, refusing to follow directions, obey legitimate requests or orders, or other disrespectful conduct towards a supervisor or other individual.” Cmty. Hosps. of Cent. Cal. v. NLRB, 335 F.3d 1079, 1088–89 (D.C. Cir. 2003). In denying the NLRB’s application for enforcement of its holding that such a rule violated the NLRA, the court disagreed with the Board’s concern that an employee “might interpret the term ‘disrespectful conduct’ to include [Section 7 activity], and that such protected activity might be chilled as a result.” Instead the court found that when read in context the rule “clearly” did not apply to Section 7 activity – instead being applicable to incivility and insubordination. Rather, “any arguable ambiguity in the rule arises only through . . . attributing to the employer an intent to interfere with employee rights.” Id. at 1089.
As demonstrated above, the OGC and the Court of Appeals for the District of Columbia Circuit have expressed different standards applicable to the assessment of Section 7 rights of employees with respect to use of social networking websites. Specifically, when considering similarly worded policies which prohibit inappropriate language in the workplace, the OGC has found that such policies may be construed by employees to prohibit Section 7 activity, while the Court of Appeals has rejected that interpretation. Putting aside whether the OGC should adhere to its currently articulated positions in the face of contrary judicial opinions, employers nonetheless may be left in a quandary as to how they should word their social networking policies.
While employers may rely on the judicial interpretations described above to adhere to broadly worded policies, employers also may wish to modify their policies by revising them to define more precisely the type of language that is prohibited, and also to make clear that nothing in the policy should be construed to limit employees’ exercise of Section 7 rights.
An example of the type of disclaimer that would survive even OGC scrutiny is discussed in a recent Advice Memorandum entitled Sears Holdings. Memorandum from Barry J. Kearney, Associate General Counsel, Nat’l Labor Relations Bd. Div. of Advice, to Marlin O. Osthus, Regional Director, Nat’l Labor Relations Bd. Region 18, No. 18-CA-19081, 2009 NLRB GCM LEXIS 67 (Dec. 4, 2009).[v] At issue in this case was Sears Holdings’ social media policy, which prohibited associates from discussing certain subjects “in any form of social media,” including “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” In this instance the OGC found that the Regional Director for Region 18 should dismiss the complaint because the policy could “not reasonably be interpreted to prohibit Section 7 protected activity.” As justification for this conclusion the OGC discussed Sears Holdings’ inclusion of the following limiting language: “The intent of this Policy is not to restrict the flow of useful and appropriate information, but to minimize the risk to the Company and its associates.” On this basis the General Counsel concluded that “no employee could reasonably construe the Employer’s Social Media Policy to prohibit Section 7 activities.”
In light of the OGC’s recent opinions concerning social media policies prohibiting harassing and offensive communications, employers may wish to implement similar limiting language into their policies governing employees’ use of social media. In addition to the language approved by the OGC in Sears Holdings, employers may wish to consider the following language that expressly protects Section 7 activity: “Nothing in this policy should be interpreted to prevent, interfere with, or otherwise restrain an individual’s legitimate exercise of his or her Section 7 activities under the National Labor Relations Act.”
Reprinted with permission from the October 3, 2011 edition of the New York Law Journal © 2011 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.
[i] Jeffrey S. Klein, Nicholas J. Pappas & Jason E. Pruzansky, When Social Networking and the Workplace Collide (June 16, 2010), http://www.weil.com/ news/pubdetail.aspx?pub=9848.
[ii] Although the term “employee” is read broadly in the NLRA, there are certain specified classes of workers who are not covered: agricultural laborers, domestic servants, children or spouses of the employer, independent contractors, supervisors, and employees of persons who are not “employers” under the NLRA. N. Peter Lareau, National Labor Relations Act: Law and Practice § 2.03(4) (2d ed. 2011). Also excluded are railroad and airline employees, because they are protected instead by the National Mediation Board under the Railway Labor Act, id. § 2.02(2)(c), as well as retired or confidential employees, medical interns, residents, and fellows, graduate assistants, and certain handicapped workers. Id. § 2.03(4).
[iii] http://www.scribd.com/doc/66219433/ American-Medical-Response-ofConnecticut-GC-Advice-MemoNLRB-2010 (last visited Sept. 26, 2011).
[iv] http://www.scribd.com/doc/63821019/ NLRB-GC-Memo-on-Social-MediaCases-Aug-18-2011 (last visited Sept. 26, 2011).
[v] http://www.scribd.com/doc/42238834/ Sears-Holding-Advice-MemorandumNLRB-Dec-4-2009 (last visited Sept. 26, 2011).