Recently, the National Labor Relations Board (NLRB), in a split decision 2-1, approved a California-based ambulance company’s implementation of a social media policy that prohibited employees from “inappropriate communications” related to the company.  The NLRB’s ruling reversed a decision by an administrative law judge, back in October 2019, that concluded that the company’s social media policy was overly broad and infringed on worker’s rights established in the National Labor Relations Act (NLRA).

Key aspects of the company’s workplace social media policy included:

• Prohibition on disclosure of proprietary or confidential information of the employer or co-workers.

• Limitations on an employee’s use of the employer’s name, logo, trademarks, or other symbols in social media to endorse, promote, denigrate or otherwise comment on any product, opinion, cause or person.

• Prohibition on posting of photos of coworkers without their written consent.

• Prohibition on use of social media to disparage the employer or others.

• Prohibition of “inappropriate communications” generally on social media.

• Prohibition of sharing of employee compensation information.

The majority highlighted that, “[t]he legitimate justifications for the respondent’s nondisparagement rule are substantial, and we find that they outweigh any potential adverse impact of the respondent’s facially neutral rule on protected rights”.

NLRB member Lauren McFerran, the only dissenter, emphasized that the decision “again illustrates how eager the board majority is to uphold employer rules, how unwilling it is to consider rules from an employee’s true perspective and how little weight it gives to the rights protected by our statute.”

Back in a 2017, in Boeing Company, the NLRB set out a new standard for determining whether a facially neutral work rule, reasonably interpreted, would unlawfully interfere with, restrain, or coerce employees in exercise of their NLRA rights.  In Boeing Company, the NLRB overruled the “reasonably construed” prong established in Lutheran Heritage Village-Livonia (2004), which held that a work rule that did not otherwise violate the NLRA would be found unlawful if employees would reasonably construe it to prohibit NLRA rights. Instead, the NLRB held in Boeing Company that, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.

This evaluation system would, “strike the proper balance between . . . asserted business justifications behind the policies, on the one hand, and the invasion of employees’ rights in light of the Act and its policy.”

In the NLRB’s latest decision, analyzing the California ambulance company’s workplace social media policy, the NLRB relied on Boeing Company’s evaluation standard, and other NRLB decisions of late related to workplace social media policies.  For example, in July of 2020 the Board, citing Boeing Company, held in Motor City Pawn Brokers Inc  that “the work rules at issue fall squarely into the category of lawful, commonsense, facially neutral rules that require employees to foster “harmonious interactions and relationships” in the workplace and adhere to basic standards of civility.”

Takeaway

When companies are faced with adverse social media activity or campaigns, whether it be by employees, customers, bloggers, etc., they frequently are unprepared to take the appropriate steps to investigate, or to weigh the legal, business, reputational, and related risks in deciding what actions, if any, to take.  For this is reason, it is important to have a clear workplace social media policy in place to help prevent the likelihood of such an incident or at least limit its impact.  But while the NLRB seems to be employer friendly of late in approval of such policies, it is important to tread carefully, aiming to develop a policy that achieves the company’s legitimate business interests without compromising its employees’ NLRA rights.  This is especially true as the NLRB’s current majority will change in summer 2021.