The NLRB Gives all employers cause for concern

A newly activist National Labor Relations Board (the “NLRB” or the “Board”) has given all employers — whether or not their workplaces are unionized — reason to pay close attention to its activities. While many of its initiatives will be subject to heated challenge in the courts, employers are well advised to keep apprised of these developments.

NLRB’s Focus on Social Media Activities: The Latest Several recent Administrative Law Judge (“ALJ”) decisions have addressed the legality of employer action with respect to employees’ use of social media. In Karl Knauz Motors, Inc., 2011 WL4499437 (NLRB Div. of Judges Sept. 28, 2011), an ALJ found that a car dealership did not unlawfully terminate an employee for his Facebook postings, finding that discharging the employee for posting photos of a car accident that had occurred at an adjacent dealership that was also owned by his employer did not constitute protected activity under the National Labor Relations Act (the “NLRA” or the “Act”). Nonetheless, the ALJ found that the employer’s policy was overbroad and could potentially chill protected activity because it prohibited employees from giving “unauthorized interviews” to third parties and stated (in a separate clause) that “[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”

In G4S Secure Solutions (USA) Inc., 2012 WL 1065721 (NLRB Div. of Judges Mar. 29, 2012), an ALJ examined a security company’s social media policy, which provided that employees were not permitted to “comment on work-related legal matters without express permission of the Legal Department.” Although the policy included a disclaimer stating that it should not be interpreted to interfere with employees’ Section 7 rights, the ALJ found that employees could reasonably interpret the prohibition to chill protected activity because the term “legal matters” was not defined in the policy.

In yet another Facebook-related ruling, an ALJ found that a retail store unlawfully terminated three employees who complained about their manager on Facebook. After the employees were admonished by the manager for closing the store early because they felt unsafe walking home at the set closing time, the employees complained about the manager on their Facebook pages. In Design Technology Group, LLC, 2012 WL 1496201 (N.L.R.B. Div. of Judges Apr. 27, 2012) the ALJ ruled that terminating the employees six days after the posts were made constituted an unfair labor practice. Notably, the ALJ also ordered that the employees be reinstated to their positions.

Further development in this emerging area of law occurred with the Board’s release of two reports focusing on social media issues. On January 25, 2012, the NLRB issued the agency’s second report (the “January Report”) regarding the interaction between the NLRA and workers’ use of social media. The January Report highlighted fourteen social media cases that had been considered by the General Counsel’s office, which reflected two main themes: whether social media policies are NLRA-compliant and when employee discipline based on social media postings violates the Act. The Board’s third report concerning this topic followed on May 30, 2012 (the “May Report” and, collectively with the January Report, the “Reports”), this time focusing exclusively on the social media policies of seven different employers. The Reports can be accessed through the NLRB website at publications/operations-management-memos.

The Board’s guidance draws a distinction between protected socal media posts, in which employees discuss shared concerns over terms and conditions of employment, and those that amount to mere “individual gripes.” For example, in a case discussed in the January Report, an employee of a veterinary hospital was angry over the promotion of a coworker and expressed her frustration in a Facebook posting. Three coworkers who were her Facebook “friends” respoinded, complaining about the woman who got the promotion and the employer’s mismanagement. The Board determined that the termination of these employees violated the NLRA.

But in another situation, an employee of a home improvement store was not found to be engaged in protected activity when, upset after being reprimanded by her supervisor, she posted on Facebook using an expletive and the name of the store. Four individuals, one of them a coworker, “liked” the status, while two other individuals commented on it. A half hour later, the employee posted again and stated that the employer did not appreciate its employees. This time, no coworkers responded. The Board concluded that these Facebook postings were “merely an expression of an individual gripe” and were not protected concerted activity. The company’s decision to discharge the employee after making these comments, therefore, did not violate the NLRA. Crucial to the Board’s decision were the observations that the employee “had no particular audience in mind when she made that post, the post contained no language suggesting that she sought to initiate or induce coworkers to engage in group action, and the post did not grow out of a prior discussion about terms and conditions of employment with her coworkers.” These factors provide helpful guidance for employers considering discipline in response to employees’ social media posts. Employers should examine each situation carefully to determine if facts exist evidencing group action.

The examples in both Reports also illustrate the close scrutiny that the Board will apply to social media policies prohibiting employee discussions online. The Board has made clear that employers must avoid creating policies that may interfere with an employee’s rights under Section 7. In assessing the lawfulness of an employer policy, the NLRB considers whether (a) an employee would reasonably understand the policy to prohibit activities protected under Section 7, (b) the policy was created in response to union activity, or (c) the rule is applied in a manner that restricts Section 7 rights. Policies that “contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights” will be deemed unlawful.

The highlight of the May Report is the inclusion of Walmart’s social media policy as a model policy that the Board found to be lawful. The May Report observes that Walmart’s policy included sufficient examples of “clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity.” Thus, for example, the policy advises employees to be “respectful” and “fair and courteous” when posting comments,

complaints, photos or videos online and specifically identifies types of prohibited posts, such as “offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.” Similarly, the rules protecting Walmart’s confidential information and trade secrets were not overly broad because they included language limiting the scope of protected information. When adopting or modifying a social media policy, employers are well-advised to consider the provisions of the Walmart policy, given that it now has the imprimatur of the NLRB. In light of the NLRB’s recent reports and recent decisions, employers must be careful to ensure that their policies regarding social media activities do not impose an undue burden on employees’ theoretical Section 7 rights and consider whether and when disparaging remarks made online by an employee may be protected. When drafting social media policies, employers must keep in mind that simply prohibiting disparaging comments or unprofessional communications will run afoul of the NLRB’s strong views. As the Walmart example illustrates, however, the use of context and specific examples in a policy will likely improve its compliance with the NLRA. Further, employers should note that a disclaimer will not automatically cure an otherwise deficient policy.

Arbitration Agreements May Violate the NLRA

In a decision at odds with the strong public policies underlying the consistently pro-arbitration rulings of the United States Supreme Court, the NLRB ruled in D.R. Horton, Inc. and Michael Cuda, 357 NLRB No. 184 (Jan. 3, 2012), that employers cannot force employees to sign arbitration agreements waiving their right to bring joint, class, or collective actions. The NLRB’s ruling seems on its face to contradict the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), which held that the Federal Arbitration Act (the “FAA”) prohibits states from conditioning the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures, and has been appealed to the United States Court of Appeals for the Fifth Circuit. See the article on page 5 for a full discussion of the recent flurry of rulings regarding class and collective action arbitration waivers.

NLRB Posting Requirement Stayed Pending Litigation

As discussed in our October 2011 Update, the NRLB issued a new posting requirement that would require employers to post workplace notices informing employees of their right to organize under the NLRA. Employers were originally expected to comply with the new rule by November 14, 2011, but the effective date has been pushed back several times due to various legal challenges. These pending lawsuits argue that the NLRB lacks statutory authority to mandate a notice posting and impose penalties for non-compliance. The rule has been temporarily enjoined by the United States Court of Appeals for the District of Columbia. Thus, employers need not post the notice pending the court’s hearing of appeals regarding the posting requirement.

In the meantime, the NLRB has continued to step up its efforts to reach out to non-union employees. Recently, it unveiled a new website targeting such individuals with the stated goal to educate them regarding their rights to engage in protected concerted activity under the NLRA. This “education” campaign may reasonably be expected to lead to an increase in claims asserted under the NLRA.