Six years ago, the National Labor Relations Board (NLRB) became one of the first governmental agencies to regulate social media use in the workplace. In 2010 and 2011, the NLRB issued a series of guidance memos and decisions sketching the contours of acceptable limitations on social media conduct of employees. Largely aimed at protecting the right of employees to act together to improve their working conditions and terms of employment – what Section 7 of the National Labor Relations Act (NLRA) calls “protected concerted activity” – the NLRB’s social media guidelines can be downright frustrating for employers. Conduct that might seem proper to ban, like making defamatory comments about management personnel or discussing confidential company information online, could be protected under Section 7, according to the NLRB.
Little has changed after six years. Three recent cases show that the NLRB is still as confounding as ever when it comes to regulating social media work rules.
- In Chipotle Services LLC d/b/a Chipotle Mexican Grill, Case No. 04-CA-147314 (Aug. 18, 2016) the NLRA struck down parts of Chipotle’s “Social Media Code of Conduct” that prohibited employees from posting “incomplete, confidential or inaccurate information” and making “disparaging, false, or misleading statements” about Chipotle, other employees, suppliers, customers, competitors, or investors. Chipotle fired an employee for violating this rule by posting tweets that criticized Chipotle’s hourly wage. The NLRA concluded that the rule was unlawful because it could reasonably chill employees in the exercise of their Section 7 rights.
- In G4S Secure Solutions (USA) Inc., 364 NLRB No. 92 (Aug. 26, 2016), the NLRB ruled that a private security company’s policies concerning confidentiality and social media postings violated Section 7 rights of employees. The confidentiality policy prohibited employees from making “public statements about the activities or policies of the company[.]” The NLRB found this rule overbroad because it could be understood to prohibit discussion of rules concerning employee conduct, which is a term and condition of employment. Also unlawful was a social media policy banning social media postings of pictures of employees dressed in their security guard uniforms. The NLRB rejected the company’s argument that the policy protected a legitimate privacy interest.
- In Laborers’ International Union of North America and Mantell, Case No. 03-CB-136940 (NLRB Sept. 7, 2016), the NLRB found that a union violated the Section 7 of the NLRA by disciplining a union member who criticized union leadership for giving a journeyman’s book to a mayoral candidate who had not gone through the union’s 5-year apprenticeship program. The comments were posted on a Facebook page accessible to approximately 4,000 people, some of whom were union members. Even though certain aspects of his comments were false, they did not lose protection because they were not “knowingly and maliciously untrue.”
Does your organization have similar social media rules concerning anti-disparagement, confidentiality, or privacy? If so, it might be time to freshen up your social media policy with the help of experienced counsel.
Anyone with a smartphone has the ability to record sound and video. This can raise privacy concerns as well as create a record of events without others’ knowledge. For these reasons, companies may prohibit employees from making workplace recordings. If your employee handbook contains such a rule, consider giving it a second look because the National Labor Relations Board (NLRB) recently struck down “no recording” rules implemented by Whole Foods.
A three-member panel of the NLRB reviewed two workplace policies: one prohibiting employees from making audio or video recordings of company meetings without prior management approval or the consent of all parties to the conversation, and the second prohibiting employees from recording conversations without prior management approval. The stated purpose of both policies was to foster open and honest communication, a free exchange of ideas, and an atmosphere of trust. Allowing employees to record conversations in secret, the policies explained, would deter employees from holding frank discussions about sensitive and confidential matters in the workplace.
The NLRB saw the “no recording” rules differently. In a NLRB Whole Foods Decision, the NLRB ordered Whole Foods to rescind the rules because they effectively violate employees’ rights under Section 7 of the National Labor Relations Act to engage in protected concerted activity. A majority of the NLRB panel expressed concern that the rule would prohibit employees from engaging in protected activities such as “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.” The majority noted that covert recordings were an essential element in vindicating Section 7 rights in many cases. The employer’s interest in encouraging open and frank communications did not override the Section 7 rights of employees.
One member of the NLRB panel dissented, arguing that employees would reasonably interpret the “no recording” rules to protect, not prohibit, Section 7 activity. However, the majority found the blanket prohibition on all recordings troubling. A witness for Whole Foods testified that the rules would apply “regardless of the activity that the employee is engaged in, whether protected concerted activity or not.” According to the majority, employees would reasonably read the broad and unqualified language of the rules to prohibit recording Section 7 activity.
The decision suggests that a “no recordings” rule that exempts protected activities could be valid. But where to draw the line between protected and unprotected activities remains an open question. Given the NLRB’s tendency to construe the scope of Section 7 activities broadly, a wide range of business discussions could be considered to involve protected activity and thus exempt from a “no recordings” rule. This would make the rule virtually useless. The NLRB’s decision may not be last word on recording rules, however, as Whole Foods has appealed the decision to the Second Circuit Court of Appeals.
A recent National Labor Relations Board Shore Point Advisory Letter gives a bit of good news to employers who want to use modern monitoring technology to monitor employees that they suspect are breaking work rules. On November 2, 2015, the NLRB concluded that an alcoholic beverage distributor (Shore Point), did not violate labor laws by failing to negotiate with its employees’ union before installing a GPS tracking device on an employee’s company truck. Shore Point suspected that the employee was stealing time while on his work routes. Shore Point’s collective bargaining agreement contains rules against stealing time.
Shore Point hired a private investigator to follow the employee to collect evidence for disciplinary purposes, an established practice the union had not objected to in the past. The investigator placed a GPS tracking device on the employee’s truck to maintain and regain visual contact. The GPS was only installed on the employee’s vehicle on the days when the investigator was following the employee, and was used as a backup method in case the investigator lost visual sight of the employee and his truck. Based on the investigator’s observations of the employee engaging in misconduct, Shore Point terminated the employee. The union filed a charge alleging that the employer unilaterally engaged in electronic surveillance without bargaining in violation of the National Labor Relations Act.
The NLRB determined that Shore Point did not have an obligation to bargain over the installation and use of the GPS device. Although the use of the device was a mandatory subject of bargaining, it did not amount to a material, substantial, and significant change in the terms and conditions of employment. Shore Point had an existing practice of using a personal investigator to monitor employees suspected of misconduct. Using a GPS tracking device was just “a mechanical method to assist in the enforcement of an established policy,” and therefore was not a material, substantial, or significant change in policy. The NLRB also noted that the GPS device only added to information that the private investigator had collected through personal observation, did not increase the likelihood of employee discipline, and did not provide an independent basis for termination.
At least two lessons can be learned from this case. First, when crafting employee work rules subject to bargaining, build in flexibility to allow for use of technological advances in enforcement methods. Second, disciplinary action against an employee should be supported with various types of evidence if possible. Just relying on evidence collected with a controversial or untested method is risky because if the use of the method is determined unlawful, the basis for the disciplinary action disappears.
The National Labor Relations Board (NLRB) recently took the unprecedented position that an employer violated federal law by failing to engage its employees’ union in collective bargaining regarding its response to a data breach. The U.S. Postal Service (USPS) was the target of a 2014 data breach affecting over 800,000 of its current and former employees. The NLRB filed complaints against the USPS claiming that it executed its response to the breach without engaging in collective bargaining with the union. That’s a violation of National Labor Relations Act (NLRA) provisions mandating collective bargaining for any issue that relates to the “wages, hours, and other terms and conditions of employment,” the NLRA alleged.
The NLRB complaints specifically allege that the USPS violated the NLRA by failing to collectively bargain with the union about the impact of the breach on union members. The USPS also allegedly violated the NLRA by unilaterally providing a remedy for the breach (one year of credit monitoring services and fraud insurance at no cost to employees) without giving prior notice to the union and providing it with an opportunity to negotiate the remedy. The NLRB complaints arose from charges filed by the American Postal Workers Union and the National Rural Letter Carriers’ Association regarding the manner in which the USPS handled the breach.
This marks the first time the NLRB has suggested that data breach response and notification measures affecting employees relate “to the wages, hours, and other terms and conditions of employment” under the NLRA. If the NLRB’s position is found to have merit, that potentially makes the breach response process more complicated and costly for unionized organizations. Union negotiations would need to be conducted at the same time the organization is dealing with fallout from the data breach, such as repairing damage to internal systems, investigating the breach, and complying with breach notification laws. Union negotiations could put tremendous pressure on organizations trying to comply with data breach laws that require notification within a short time period after discovery of the breach. There is also a heightened risk of leaks to the press if organizations must notify unions before giving formal notification as required by law.
The NLRB’s complaints against the USPS reinforce the urgency of developing well-crafted breach response plans. Union organizations might wish to add items to their response plans that engage employee unions in the response process. Another precautionary measure is to solicit the input of the union in developing acceptable breach response protocols before a breach occurs rather than in the midst of a crisis situation.
In 2007, the National Labor Relations Board (NLRB) issued its Register Guard decision allowing employers to prohibit employees from using company email to engage in discussions about the terms and conditions of their work with other employees or unions for purposes of “mutual aid and protection,” which are protected under Section 7 of the National Labor Relations Act. In April 2014, the NLRB issued a notice and invitation to the parties in a case involving Purple Communications, Inc. and interested amici curiae to file briefs on whether Register Guard should be overruled. The NLRB received numerous amici briefs on the issue. Employers were relieved when the NLRB deferred a decision on overruling Register Guard in September of last year.
The relief was short-lived. Just three months later, the NLRB reversed course and overruled Register Guard, noting that email “has become a critical means of communication” and is “a natural gathering place” for employees to communicate with each other. In a 3-2 decision involving Purple Communications, Inc., the NLRB ruled that employees who have access to their employer’s email system for work purposes presumptively have a right to use the system for protected communications on nonwork time.
Here are answers to some basic questions about how Purple Communications impacts company email policies:
Must employers give all their employees access to the company email system?
No. Employees have a right to use corporate email for protected communications only if they already are given access to the system for work or personal reasons. Purple Communications does not force employers to grant email access to anyone. For that matter, employers are not required to grant email access to non-employees, including unions and union organizers.
May employers put restrictions on use of company email for protected discussions during nonwork hours?
Maybe. Employers may restrict use of company email to engage in protected discussions during nonwork time by demonstrating that there are actual (as opposed to theoretical) “special circumstances” that “make the ban necessary to maintain production or discipline.” This appears to be a difficult standard to meet. Employers must establish a connection between the restriction and their interest in imposing the restriction.
Is it ok to ban all nonbusiness use of company email?
A total ban would be subject to the “special circumstances” test discussed above. According to the NLRB, the existence of special circumstances “will be a rare case.”
May employers impose guidelines on using nonbusiness of company email?
Yes. Employers may establish specific guidelines for nonbusiness use of corporate email. Use of corporate e-mail for protected communications may be restricted to nonworking time. Employers also have the right to establish “uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.” The single example provided by the NLRB is “prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.”
May employers monitor their employees’ email use?
Yes. Employers may monitor computer and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for harassment or other activities that could give rise to employer liability. However, employers may not change their monitoring practices specifically in response to union or other protected activity. On that note, any modifications to an email policy that targets protected activity for discrimination is likely unlawful.
Do employers need to change their email policies now?
Purple Communications applies retroactively, so unless the decision is appealed and stayed in the interim, employers should seriously consider modifying their company email policy to comply with the decision.
Does Purple Communications apply to other company electronic communications systems like texting or instant messaging?
Currently no, but the NLRB has signaled that it might extend the reasoning in the Purple Communications decision to other forms of electronic communication in the future.
Purple Haze: NLRB Still Unclear on Whether It Will Stop Employers From Limiting Use of Company Email to Business Purposes