A recent complaint issued by a Regional Director of the National
Labor Relations Board ("NLRB") poses a new challenge for
employers attempting to control their employees' use of the
internet. Facebook, LinkedIn, Twitter, blogs, and other internet
postings have grown exponentially in recent years, both at home and
at work. Many employers have adopted internet policies to protect
their companies from disparagement and legal problems arising from
employee postings. Those policies need to be carefully reviewed in
light of recent developments in labor law.
Until now, the NLRB has held that employers have the right to
maintain reasonable workplace policies to maintain order in the
workplace and avoid liability from employee actions that affect the
public. The Board has balanced these employer rights against the
right of employees, both union and non-union, to engage in
"concerted activity" for their "mutual aid and
protection" under the National Labor Relations Act. Under a
2004 case called Lutheran Heritage Village, the NLRB upheld
workplace rules limiting public statements by employees, so long as
such rules do not explicitly restrict rights to engage in protected
activity (such as organizing) and are aimed solely at establishing
a "civil and decent work place." In another case decided
in 2007 involving The Register-Guard newspaper, the NLRB upheld
against union attack an employer email policy that prohibited
"non-job related solicitations."
More recently, the NLRB's Office of General Counsel issued an
advice memorandum in 2008 upholding the social media policy of
Sears Holdings, which had been challenged by the International
Brotherhood of Electrical Workers ("IBEW"). Sears'
policy prohibited, among other things, the "disparagement of
company's or competitors' products, services, executive
leadership, employees, strategy and business prospects."
Relying on Lutheran Heritage Village, the General Counsel dismissed
the IBEW complaint, finding that there was no evidence that Sears
had used its policy to discipline any employee for engaging in
protected activity, nor was the policy established in response to
the union campaign.
However, the composition of the NLRB has changed dramatically
since the above decisions were issued, and there is now a new
General Counsel as well. A majority of the Board's current
membership consists of lawyers who previously represented labor
unions. They have begun to overrule past precedents and issue new
decisions that are generally viewed as more favorable to union
interests.
Consistent with these changes, the recent complaint issued by a
Regional Director of the NLRB in Hartford, Connecticut against a
company called American Medical Response may portend a shift in the
Board's treatment of social media policies. The Regional
Director declared that American Medical Response violated the law
by firing an employee who posted negative comments about her
supervisor on Facebook. The company's internet posting policy
prohibited employees from making disparaging, discriminatory or
defamatory comments about the company or its supervisors on public
websites.
The allegations in the Regional Director's new complaint appear
to challenge the NLRB precedent and case law described above with
regard to social media / internet / email / computer use policies.
The company policy which is the subject of the NLRB complaint
appears to share the same characteristics as many workplace
internet policies that have been previously upheld.
It should be noted that the new Regional Director complaint does
NOT establish binding policy of the NLRB. The complaint must be
reviewed in a trial before an Administrative Law Judge (unless it
is settled first), and the judge's decision would have to be
appealed to the NLRB itself for a final decision to be issued.
Nevertheless, the issuance of the new complaint sends an ominous
message to employers regarding the legal status of previously
recommended internet policies. Reinforcing this message of
impending change, the Office of General Counsel took the unusual
step of publicizing the Regional Director's complaint in a national press release issued on November 2,
2010.
The NLRB may also be in the process of further restricting the
right of employers to control union solicitation of workers, by
either co-workers or outside union organizers, via email and the
internet. Previous holdings by the Board under the Bush
Administration such as the Register-Guard case, which seemed to
permit common sense restrictions of non-work-related email and
internet usage by and to employees, appear to be high on the list
of the new Board majority for reversal or modification. Employer
policies which block employee access to certain Internet sites may
also come under renewed scrutiny.
What should employers do now?
At a time when the NLRB's views appear to be in flux, and
the final outcome is unknown, it is hard for employers to tell
whether their current policies comply with the law and whether
changes are needed. It is advisable for employers to review their
internet and email usage policies and to consider whether any of
them could be misinterpreted as interfering with employee rights
under the labor laws. Employers may need to include new disclaimers
or otherwise scale back those policies which appear most likely to
be construed as interfering with employee rights.
Employers should be particularly careful during a union organizing
campaign to consider whether disciplinary enforcement of internet
or email policies is likely to provoke NLRB complaints.
Consultation with experienced labor counsel is strongly recommended
before terminating an employee for violation of any internet or
email policy. Venable attorneys are experienced in counseling
employers on internet policy issues and responses to union
organizing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.