NLRB continues quest to expand its authority

published in McAfee & Taft EmployerLINC | March 18, 2014

By Michael Lauderdale

Now that the National Labor Relations Board has its mandated full complement of five members, it is expected that it will continue its quest to broaden its authority over private employers. For example, along with the NLRB’s attempts to invalidate arbitration agreements, social media cases have received significant attention, mainly due to the fact that they substantially impact non-unionized workplaces. It is expected that the NLRB will continue to evaluate — and curtail —social media policies based upon its position that it has the right to monitor and protect any and all employee speech that even arguably addresses “workplace conditions.”

Not surprisingly, the standards the NLRB presently is applying in social media cases derives from its older decisions. Recently, however, NLRB Chairman Mark Caston Pearce was quoted as saying that the NLRB will not categorically rule out the possible need to develop new standards in the future for social media issues.

NLRB-rulingsThe NLRB currently is addressing several social media cases. One of the closely monitored cases (Triple Play) addresses the issue of whether “liking” a co-worker’s Facebook post about workplace conditions counts as protected concerted activity under the National Labor Relations Act. If the NLRB finds that it does constitute protected activity, it will further blur the line on protected activity — an employee won’t have to join a picket line, stand up, or verbalize a complaint; rather, a click of the mouse at a location a thousand miles distant will “virtually” be protected activity, as opposed to merely disparaging speech for which the employee could be lawfully disciplined.

The focus of the NLRB on social media targets its policy to prevent employers from limiting the rights of employees to band together. The NLRB will take a close look at how sites like Facebook and Twitter can be used to organize or communicate with co-workers. Basically, the NLRB takes the position that such policies cannot be used to deter an employee’s right to workplace speech and protected concerted activities both in and outside the workplace.

As a general rule, a social media policy banning employees from complaining about the company or casting a negative light are lawful; however, a policy that can be construed as prohibiting employees from sharing information or complaints about wages, workplace conditions, or other job-related terms will likely be in violation of the National Labor Relations Act. A policy cannot restrict the right of workers to discuss job conditions with co-workers via social media. The NLRB will take the position that any posting or statements on social media related to terms and conditions of employment are protected activity. The NLRB also has made it clear that it will treat online discussions among employees just as it would if the words were spoken in the break room or at the worksite. This means employees can discuss wages and working conditions online.

At the end of the day, unless an employer’s social media policy is written with clear, specific examples as to what kind of activity the policy is prohibiting, it runs the strong risk of being overbroad, therefore unlawful.

The following are specific examples of obligations and prohibitions the NLRB already has found to be unlawful in social media policies:

  1. Prohibiting the release of the employer’s confidential information to co-workers;
  2. Requiring that co-workers be treated with respect;
  3. Requiring that employees respect the privacy of others;
  4. Prohibiting commenting on legal matters;
  5. Requiring a friendly tone of voice in the workplace;
  6. Requiring that employees exercise personal responsibility;
  7. Requiring the reporting of unsolicited communications; and
  8. Prohibiting contact with government agencies and media.

In summary, these types of policies were found to be unlawfully overbroad because an employee might interpret them as limiting their right to critically discuss workplace conditions.

Another item on the NLRB’s agenda is workplace investigation policies. The NLRB has held that employers cannot maintain a blanket rule requiring employees who participate in workplace investigation to keep quiet about the proceedings. This decision means that an employer must now justify specific reasons for keeping each investigation confidential.

The NLRB also continues to attack dress policies. Recently, a NLRB judge found that a dress code provision in a Honda dealer employee handbook violated federal labor law because it banned employees who interact with the public from wearing insignias or other “message clothing.” The administrative law judge found that a blanket provision on dress code violated the National Labor Relations Act.

The NLRB will also continue its push to overturn a Bush-era labor board decision holding that workers have no statutory rights to use an employer’s email system for non-business purposes. It would not be surprising if the current board reverses this decision and, in fact, in October 2013 the NLRB’s general counsel took the position that it ought to be overturned.

In another recent ruling, an NLRB judge ruled that a for-profit technical school policy prohibiting employees from “gossiping” violated federal labor law, and thus, firing an employee for violating the rule was held unlawful. The gossip policy, which prohibited, among other things, discussing someone’s personal life when that person is not present, talking about a person’s professional life without a supervisor present, and creating and sharing rumors, was held to be so broad as to interfere with the employees’ ability to exercise their rights under the National Labor Relations Act.

Employers should be aware of the NLRB’s ongoing campaign against what previously have been considered lawful policies. It is clear that the NLRB is attempting to broaden its authority into non-unionized workplaces through an expanded interpretation of the National Labor Relations Act as it applies to basic workplace policies.