The National Labor Relations Board (NLRB) has for at least the past three years been actively scrutinizing employer social media and no-gossip policies to determine whether they interfere with employees’ rights to engage in protected concerted activity. The National Labor Relations Act (NLRA) protects employees in both union and nonunion workplaces in freely discussing wages, hours, and working conditions and joining together for their mutual aid and protection. The NLRB has struck down employer policies prohibiting such activities as being overbroad and unlawful.
Since the dawn of the office worker, employers have tried to address the detrimental effects “water cooler talk” and office gossip have on employee productivity. The advent of social media has increased this concern as it allows employee conversations about the workplace to spread far beyond office hallways. Employers have attempted to limit the impact of social media and office gossip by instituting policies aimed at curbing such behavior. However, the NLRB has found many policies dealing with these matters unlawfully overbroad and required employers to rescind them.
In a recent NLRB decision, Boch Imports, Inc. d/b/a Boch Honda (NLRB 2014), an Administrative Law Judge (ALJ) reviewed a social media policy that included the following provisions:
1. The Company requires its employees to confine any and all social media commentaries to topics that do not disclose any personal or financial information of employees, customers or other persons, and do not disclose any confidential or proprietary information of the Company.
5. If an employee’s online blog, posting, or other social media activities are inconsistent with, or would negatively impact the Company’s reputation or brand, the employee should not refer to the Company, or identify his/her connection to the Company.
7. While the Company respects employees’ privacy, conduct that has, or has the potential to have a negative effect on the Company might be subject to disciplinary action up to, and including, termination, even if the conduct occurs off the property or off the clock.
8. Employees may not post videos or photos which are recorded in the workplace, without the Company’s permission.
9. If an employee is ever asked to make a comment to the media, the employee should contact the Vice President of Operations before making a statement.
11. Employees choosing to write or post should write and post respectfully regarding current, former or potential customers, business partners, employees, competitors, managers and the Company. Employees will be held responsible for and can be disciplined for what they post and write on any social media. However, nothing in this Policy is intended to interfere with employees’ rights under the National Labor Relations Act.
The ALJ said “it requires little discussion to find that a number of these provisions clearly violate the [NLRA] as employees would reasonably construe these provisions as preventing them from discussing their conditions of employment with their fellow employees, radio and television stations, newspapers or unions, or limiting the subjects that they could discuss.”
In another case, Laurus Technical Institute (NLRB 2014), the NLRB thwarted an employer’s attempt to limit office gossip when it upheld an ALJ decision that its no-gossip Policy was unlawful. In relevant part, the policy stated, “Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action.” Nine months after the school instituted the policy, it terminated an employee, in part, for multiple complaints about repeated violations of the company’s written no-gossip policy. The ALJ concluded the policy violated the NLRA as overbroad, ambiguous, and restrictive of an employees’ right to discuss terms and conditions of employment. The ALJ then ruled the termination unlawful as it was based in part on the policy.
Many employers maintain social media and no-gossip policies similar to those at issue in these cases. Both decisions highlight that employers, union and nonunion, must be mindful of the NLRA when crafting policies to limit an employee’s use of social media and office gossip. As the case law continues to develop, employers are encouraged to revisit their handbooks to revise policies that may run counter to the NLRB’s enforcement position. Contact an MSEC attorney for assistance.