NLRB Social Media Rulings

Triple Play Sports Bar and Grille, Nos. 34-CA-012915, 34-CA-012926 (N.L.R.B. Aug. 22, 2014)

Facts: Two employees had a discussion on Facebook criticizing the employer’s failure to withhold the proper amount of state income tax from their paychecks.

The employer argued that the employees’ conduct, including using profane language to criticize one of the owners, was so disloyal that they forfeited the NLRA’s protections.

NLRB: The Board disagreed that the employees’ comments were maliciously untrue and concluded that the communications were protected because the purpose of the conversation was to “seek and provide mutual support looking toward group action to encourage the employer to address problems in terms and conditions of employment, not to disparage its product or services or undermine its reputation.”

In addition, the Board held that the company’s “Internet/Blogging” policy discouraging online communications involving “confidential or proprietary information about the Company, or … inappropriate discussions about the company, management, and/or co-workers” violated the NLRA. The fact that the policy included language stating that it had “no force or effect” to the extent it was precluded by state or federal law made no difference in the Board’s view. While acknowledging that the policy did not “explicitly restrict protected activity,” the Board nevertheless determined that it violated the NLRA because employees could reasonably interpret it as “proscribing any discussions about their terms and conditions of employment [that the employer] deemed ‘inappropriate.’”

Durham School Servs., L.P., 360 N.L.R.B. 85 (2014)

Facts: A school bus operator had a social networking policy that threatened employees with discipline for, among other things, publicly sharing information “related to the company or any of its employees or customers” was unreasonably broad and vague under the NLRA.

NLRB: The NLRB concluded that employees “could reasonably interpret this policy language as restraining them in their . . . right to communicate freely with fellow employees and others regarding work issues and for their mutual aid and protection.”

Prof’l Elec. Contractors of Conn., Inc., No. 34-CA-071532 (N.L.R.B. A.L.J. June 4, 2014)

Facts: Employee handbook had a rule prohibiting “[i]nitiating or participating in distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation.”

NLRB: The rule “insofar as it prohibits employees from using their own computers to communicate with others ‘in any manner that may adversely affect the company business or reputation’ is invalid” under the NLRA.

Hoot Winc, LLC, No. 31-CA-104872 (N.L.R.B. A.L.J. May 19, 2014),

Facts: A company that provided restaurant management services terminated a server for posting disparaging comments about coworkers and managers on social media in violation of an “insubordination rule” contained in the company’s handbook.

NLRB: The rule was subjective because it did not define terms such as “insubordination,” “lack of respect,” or “cooperation” and that construing those terms broadly could have a chilling effect on employees engaged in the exercise of NLRA rights.

Lily Transp. Corp., No. 01-CA-108618 (N.L.R.B. A.L.J. Apr. 22, 2014)

Facts: An employer had an “information posting” rule in its employee handbook intended to protect the employer’s public image

NLRB: The rule did not distinguish between disclosing information about customers and company business, which the employer may have been legally authorized to prohibit, and disclosing other information that employees should have been free to share. Therefore, it violated the NLRA.

Landry’s Inc., No. 32-CA-118213 (N.L.R.B. A.L.J. June 26, 2014)

Facts: The policy stated “the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business.”

NLRB: This policy did not explicitly prohibit employees from posting information regarding their jobs or those of their coworkers, but rather, urged them not to do so only if the postings were likely to create morale problems. Without more, “it would be unreasonable for employees reading this language to conclude that the [employer] generally frowns upon all job-related postings of any type.”

Conclusion

Employers should consider identifying precisely the kinds of unprotected social media activities that will subject employees to discipline. These may include:

Disclosure of proprietary, financial, marketing, strategic or other confidential business information belonging to the employer that is clearly defined and does not relate to terms and conditions of employment.
Threats of violence or remarks that are obscene, malicious or bullying.
Comments that are racist, sexist or otherwise discriminatory and create a hostile work environment.
Rumors or other disparaging statements about the employer that the employee knows to be false.