Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

Last month, employers received a little more help from the National Labor Relations Board (NLRB) in formulating social media policies that pass muster under scrutiny from the Board. On October 19, 2012, the Associate General Counsel (AGC) for the NLRB's Division of Advice provided a useful and well organized opinion in response to a request from an NLRB Regional Director. The request was for advice as to whether an employer’s social media policy violated the National Labor Relations Act (NLRA), and whether an employee’s termination because of a violation of that policy violated the Act. In that memorandum, the AGC concluded that the employer’s policy was not overly broad and did not violate the NLRA. He further concluded that the employer did not unlawfully discharge an employee for an electronic posting that violated the policy. In re: Cox Communications, Inc. Case 17-CA-087612 (October 19, 2012)

The situation arose when an individual, employed by Cox Communications, Inc. as a technical support representative, posted a comment to his “Google+” account, in response to a customer’s negative and very personal comment to him during a troubleshooting phone call. The posting included the “F-word” directed to the customer. A supervisor saw the posting and reported it to management. The employee was suspended and an investigation was undertaken during which it was discovered that the employee had engaged in other, similar postings that also included lewd language which disparaged customers. The employee ultimately was fired for his Google+ postings. In response, he filed a Charge with the NLRB, alleging that the company’s social media posting violated his rights under the NLRA.

An employer violates Section 8(a) of the NLRA if its policy would “reasonably tend to chill employees in the exercise of their Section 7 rights.” Section 7 of the Act allows employees to engage in protected concerted activity, in order to allow them to discuss terms and conditions related to employment. The NLRB has developed a two-step process to determine whether a policy might violate Section 8. First, it determines whether the policy violates the Act by directly restricting Section 7 protected activities. Second, if the policy does not explicitly restrict those activities, the Board reviews it to determine whether it still may violate the Act if an employee could “reasonably construe” the language as prohibiting protected activity; if the policy was promulgated in response to union activity; or if the policy has been applied to restrict such activity. While the Board will not find a violation simply because a policy can conceivably be read to restrict protected activity, it can (and typically will) find a violation if a policy contains no limiting language or context that would clarify to employees that their Section 7 rights are not restricted.

The Cox Communications social media policy included acceptable limiting language and context. Its restrictions were spelled out in detail: “DO NOT make comments or otherwise communicate about customers, coworkers, supervisors, the Company, or Cox vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age race, religion, sex, sexual orientation, gender identity or expressions, genetic information, disability, national origin, ethnicity, citizenship, marital status, or any other legally recognized protected basis under federal, state or local laws, regulations or ordinance.” In addition, the policy included a “savings clause” that stated specifically that nothing in the policy “is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment.”

In his analysis, the AGC pointed to the detailed policy provisions as providing context regarding the “reasonableness” of the policy. Whereas a rule simply proscribing “negative conversations” about manager, with no further clarifications or examples, would be unlawful because of a potential chilling effect on protected activity, Cox’s policy provided a lost list of “plainly egregious conduct,” and “clearly would not be reasonably understood to restrict Section 7 activity.”

The AGC also pointed out the policy’s “savings clause . . . further ensures that employees would not reasonably interpret any potentially ambiguous provision in a way that would restrict Section 7 activity.” Based on the wording of the policy, the Board concluded that the termination of the technical support representative was lawful, because the Google+ post was not concerted activity for mutual aid and protection within the meaning of Section 7 of the NLRA. Concerted activity is defined to include “circumstances where individual employees seek to initiate or to induce or to prepare for group action.” Clearly, the employee’s vulgar comments directed at a customer in anger, and not on behalf of coworkers or others, and could not be construed as concerted activity. Further, the company’s investigation of the matter before firing the individual evidenced a considered and thorough review of the situation.

Takes-aways from this matter are clear: (1) social media policies should include limiting language or other context that would clarify to employees that Section 7 rights are not restricted; (2) a “savings clause” that specifically states that the policy is not meant to prevent concerted communications can support a Board finding that the policy is lawful; and (3) a practice of prompt and thorough investigation of an employee’s posting, including objective and thorough documentation, prior to taking adverse action against the employee will help to support the appropriateness of the action.
 

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Section 7 of the National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment. These concerted activities can be done in person, or by other methods of communication, including electronic media. Employers who terminate an employee based upon a social media posting that ultimately is determined to have been “protected concerted activity” may be violating Section 7 of the NLRA. An employer’s discipline or termination of an employee, if found to violate the NLRA, can lead to legal liability that may result in financial damages and reinstatement of the employee. That fact has created interest, consternation, and varying levels of panic among employers who are trying to balance the rights of employees to protected concerted activity with a company’s right to expect compliance with its policies and with attempts to protect confidential information.

In August 2011 and January 2012, the Acting General Counsel of the National Labor Relations Board (NLRB) issued reports that both dealt with cases arising in the context of employee communications via social media. Those reports provided to employers a glimpse into the NLRB’s rationale for dealing with cases in which employees claim that an employer’s disciplinary action based on a social media posting violated Section 7 of the NLRA. But those reports did little to stem employers’ concerns related to the delicate balance between employees’ rights to open communication with each other, and implementation and enforcement of company policies related to communications via social media.

On May 30, 2012, the NLRB issued its third report. This one was dedicated primarily to social media policies. The report summarized seven different policies, pointing out provisions in the first six which may be in violation of Section 7 of the NLRA, but holding up the seventh policy – newly revised by a national retail chain -- as “lawful.”

Some of the examples of “unlawful” language in the first six policies may cause some concern among employers. For instance, one company’s policy stating that employees who were in doubt as to whether a posting might violate the policy should “check with [Employer] Communications or [Employer] Legal to see if it’s a good idea . . . .” was deemed a violation of law because a “rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities” automatically violates the NLRA. A company’s policy that required employees to assure that “posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site” was deemed to be unlawfully overbroad and, according to the NLRB, could “reasonably be interpreted to apply to discussions about, or criticism of the Employer’s labor policies and its treatment of employees that would be protected by the [NLRA]. . . .” Of real concern is the NLRB’s evaluation of this company policy: “Offensive, demeaning abusive or inappropriate remarks are as out of place online as they are offline.” According to the Board, that statement is in violation of Section 7 because it “proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”

Employers should disabuse themselves of the notion that a “savings clause” (for example, “This policy will be administered in compliance with applicable laws and regulation, including Section 7 of the NLRA.”) will satisfy the NLRB from finding its policy to be unlawful. Such a provision, according to the May 30 report, “does not cure the ambiguities in [a] policy’s overbroad rules.”

What can an employer do to meet the standards set forth by the NLRB in this latest report? Luckily, the Board provided a roadmap in the form of an “acceptable” policy. According to the Board, the key to that policy’s lawfulness is that the policy “provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rule to prohibit Section 7 activity.” While a number of the policy’s provisions are as broad as those found by the NLRB to be in violation of Section 7 in other policies, the concrete examples of what does and does not violate the policy seems to have satisfied the concerns that the Board expressed regarding the six earlier examples.

While some employers may assume that the easiest way to assure full compliance with Section 7 is simply to use the exemplar policy in its totality, those employers should understand that company policies typically are not one-size-fits-all. A more practical solution would be to review the exemplar policy carefully, and then tailor its core concepts to fit the values and existing needs of the specific employer. It also is important to continue to pay attention to the development of case law in this area, to assure an understanding of how the courts will interpret this latest NLRB report.
 

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