UPDATE: On April 30, 2013, a three-member panel of the NLRB adopted the ALJ’s decision in this case. Read the board decision here (the ALJ decision and the Dish Network social media policy that got invalidated are attached).
The NLRB recently dealt another blow to the ability of employers to prohibit employees from engaging in disparaging speech on social media. On November 14, 2012, an Administrative Law Judge (“ALJ”) of the NRLB issued a decision striking down two rules in Dish Network’s employee handbook dealing with social media use. The first rule prohibited employees from making disparaging or defamatory comments about their employer. The ALJ found that the rule could unlawfully chill employees in the exercise of their Section 7 rights to engage in concerted activity. The second rule prohibited employees from engaging in “negative electronic discussion” during company time. This rule could effectively ban union activities during breaks and other non-working hours at the workplace, the ALJ concluded.
This was not the first time Dish Network’s social media policy came under fire. On May 31, 2012, the Acting General Counsel of the NLRB issued a memo criticizing provisions of actual social media policies. Dish Network was one of the companies whose policies were scrutinized in the memo. But while the memo was merely advisory, the latest ALJ ruling is not.
Recent NLRB rulings like this one leave behind a wake of confusion for employers. Provisions that are commonplace in employee handbooks, like non-disparagement rules, are being invalidated when applied in the social media context. To add to the confusion, the NLRB can seem inconsistent. For example, the May 30 memo approved Wal-Mart’s social media policy, which includes an instruction to “refrain from using social media while on work time” or on company equipment. However, the NLRB struck down Dish Network’s practice of banning social media activity on company time. What’s an employer to do? Few definitive answers are available, but here are a few ideas to help you survive in this uncertain environment:
- Stop treating social media as a novelty. Employers who still regard social media as a frivolous activity tend to use draconian measures (like categorical bans) to regulate it. The reality is that social media has become part of everyday life, nearly as much as cellphones and texting has. The point is not to restrict social media use per se, but to manage the consequences of such use. Which leads us to . . .
- Focus on outcomes. Dish Network very well could have intended its non-disparagement work rule to protect its brand and reputation rather than prohibit employee discussion about their work conditions or compensation. However, the rule did not clearly spell out its objectives. Tell employees the outcomes you want to avoid. If what you want to prevent are discriminatory remarks that create a hostile work environment, say so. This was one of the features of the Wal-Mart policy that the NLRB’s May 30 memo approved. In a section of the policy entitled “Be Respectful,” Wal-Mart states that if an employee decides to post complaints or criticism, they should ” avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.” The policy then listed examples of such conduct, 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.”
- Stay positive. Rather than just banning certain kinds of conduct on social media, consider setting affirmative guidelines that employees should adhere to when communicating with others, whether on social media or other communication channels. For example, do you want your organization to be portrayed in a certain way? Then describe the image you would like your employees to convey to others in their communications when talking about the organization.
- It’s not over. The NLRB rulings are not the final word on how broadly employers may regulate social media activity of employees. Although ALJ decisions and even those of NLRB panels are more authoritative than guidance memos, courts have yet to weigh in.
Employers who discipline employees for their social media activity could unwittingly violate protections under the National Labor Relations Act (NLRA) for employees who engage in “protected concerted activity.” An employee engages in protected concerted activity when acting together with other employees, or acting alone with the authority of other employees, for the mutual aid or protection of co-workers regarding terms and conditions of employment. Since social networks by nature connect people, online gripes about work—which could be read by co-workers of the author within the same social network—could constitute protected concerted activity. Three recent National Labor Relations Board (NLRB) decisions highlight this risk.
In Hispanics United of Buffalo, Inc., 359 NRLB No. 37 (Dec. 14, 2012), an employee at a domestic violence relief organization posted on Facebook about a co-worker (Cruz-Moore) who threatened to complain about the work habits of other employees to the executive director of the organization. The employee wrote: “Lydia Cruz, a coworker feels that we don’t help our clients enough . . . . I about had it! My fellow coworkers how do u feel?” Four off-duty employees responded to this post with disagreement over Cruz-Moore’s alleged criticisms. Cruz-Moore saw these posts, responded to them, and brought them to the attention of the executive director. The employee who authored the original post and the employees who responded were fired. Two NLRB members of a three-person panel found the termination to be a violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). The NLRB found the posts to be “concerted” because they had the “clear ‘mutual aid’ objective for preparing coworkers for a group defense to [Cruz-Moore’s] complaints.” The NLRB also considered the posts “protected” because they related to job performance matters.
In Pier Sixty, LLC, 2013 WL 1702462 (NLRB Div. of Judges Apr. 18, 2013), the service staff of a catering company were in the process of taking a vote on union representation when a staff member (Perez) got upset by what he perceived as harassment by his manager. During a break, Perez went to the bathroom and posted on Facebook: “Bob is such a NASTY M***** F****R don’t know how to talk to people!!!!! F**k his mother and his entire f*****g family!!!! What a LOSER!!!! Vote YES for the UNION.” Various co-workers responded to the post. The company fired Perez after learning about the post. An administrative law judge of the NLRB held that the employer violated Section 8(a)(1) of the NLRA. The judge found the post to constitute “protected activity” because it was part of an ongoing sequence of events involving employee attempts to protest and remedy what they saw as rude and demeaning treatment by their managers. The post was also “concerted” because it was activity undertaken on behalf of a union.
In Design Technology Group, LLC d/b/a Bettie Page Clothing, 359 NLRB No. 96 (Apr. 19, 2013), employees of a clothing store repeatedly but unsuccessfully attempted to persuade their employer to close the store earlier so that they wouldn’t have to walk through an unsafe neighborhood at night. The employees posted Facebook messages lamenting the denial of their request and criticizing their manager. In one message, an employee said she would bring in a book on workers’ rights to shed light on their employer’s labor law violations. Another employee saw the messages and sent them to the HR director, who in turn forwarded them to the store owner. The owner fired the employees who posted the messages, allegedly for insubordination. A NLRB administrative law judge found the terminations unlawful because the messages were a continuation of an effort to address concerns about work safety (i.e., leaving work late at night in an unsafe neighborhood) and thus constituted protected concerted activity.
LegalTXTS Lesson: What should employers learn from these decisions? To avoid violating Section 8(a)(1) of the NLRA, employers might consider the following before disciplining employees based on their social media activity:
- Check whether the employee’s post attracted or solicited a response from co-workers. The interactive nature of social networking means that communications via social media are often “concerted.”
- Calls for co-workers to take action likely constitute “protected” activity.
- Complaints about work or co-workers—even if vulgar—can be considered “protected” activity.
- Messages posted outside of the workplace or work hours can still be considered protected concerted activity.
- Be especially sensitive to messages that reference collective bargaining activity or labor requirements. Those are red flags indicating the need to exercise caution.
- Often, social media is not the initial venue for airing work-related complaints. Investigate whether the complaints voiced online were previously brought to the attention of the employer. If they were, the online messages are more likely to be found to be part of a series of protected activity.
Check out the article on Internet firings posted on HR Hero’s “Technology for HR” blog. The article talks about the firing of the Applebee’s waitress who snapped a picture of a receipt on which the customer, a pastor, wrote: “I give God 10% Why do you get 18?” and posted it on Reddit. I was happy to provide commentary for the article on Applebee’s social media policy and suggest tips for employers dealing with embarrassing Internet activity of employees like the Applebee’s incident.
NLRB Strikes Down Restrictions on Employee Communications on Social Media and Elsewhere — DirectTV U.S. DirecTV Holdings, LLC, 359 NLRB 54 (Jan. 25, 2013)
On the same day that the D.C. Circuit Court of Appeals ruled that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional, the NLRB struck down several of DirectTV’s work rules, including one relating to social media use. The ruling comes as little surprise, as it mirrors the positions and rationale stated in previous Guidance Memoranda issued by the NLRB’s Office of General Counsel. Of course, this decision carries more weight because it’s issued by the Board itself (but query the ruling’s validity in light of the D.C. Circuit decision).
Restrictions on employee communication with the media
The first two rules instructed employees to “not contact the media,” and “not contact or comment to any media about the company unless pre-authorized by Public Relations.” Section 7 of the National Labor Relations Act (NLRA) protects employee communications with the media concerning labor disputes. The broad and unequivocal language of the rules could lead an employee to believe that such protected activity is not permitted under the rules, which is unlawful, the NLRB. The rules did not distinguish between protected and unprotected communications (e.g., maliciously false statements).
Restrictions on employee communication with NRLB agents
The next rule in question stated: “If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by telephone/email, the employee should contact the security department . . . who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” The NLRB found that this rule would make employees think that they must go through their employer before cooperating with an NLRB investigation, as NLRB agents could reasonably be considered “law enforcement” as far as labor matters are concerned. This violates Section 8(a)(4) of the NLRA, which protects employees who file unfair labor practice charges or who provide information in the course of an NLRB investigation. While an employer could have a legitimate interest in knowing about attempts by law enforcement agents to interview employees, the rule failed to separate out those situations from those in which the Section 8(a)(4) protections apply.
DirecTV instructed employees to “[n]ever discuss details about your job, company business or work projects with anyone outside the company” and to “[n]ever give out information about customers or DIRECTV employees.” The rule identified “employee records” as one of the categories of “company information” that must be kept confidential. The NLRB struck down these rules because employees could reasonably understand them to restrict discussion of their wages and other terms of conditions of employment. The rule was also deficient in not exempting protected communications with third parties such as union representatives, NLRB agents, or other governmental agencies concerned with workplace matters.
Online Disclosures of “Company Information”
DirecTV posted a corporate policy on its intranet stating: “Employees may not blog, enter chat rooms, post messages on public websites or otherwise disclose company information that is not already disclosed as a public record.” In addition to the policies on the intranet, DirecTV issued a handbook with overlapping sets of rules governing employee conduct and effectively directed employees to read them as one. The handbook contains a confidentiality rule that defines “company information” as including “employee records.” Reading the two policies together, an employee could understand the intranet policy to prohibit online disclosure of information concerning wages, discipline, and performance ratings.
LegalTXT Notes: This ruling isn’t groundbreaking, but it confirms that the Board agrees with the positions taken in the previous OGC Guidance Memoranda on social media policies. The D.C. Circuit does cast a pall over the validity of this ruling, although the NLRB supported the ruling with multiple Board decisions that were issued well before the recess appointments were made.
The steady flow of memos and decisions on social media from the NLRB in the last two years regarding social media has left many employers bewildered about the do’s and don’ts of social media policies. The NLRB has been rather active in striking down social media policies for unlawfully restricting activity protected by Section 7 of the National Labor Relations Act (NLRA). In the midst of this confusion, allow me to direct your attention to a little feature with a heroic name – the Savings Clause. A Savings Clause is a statement that sets boundaries around a social media policy. It’s basically a disclaimer. It says something along the lines of, “this policy should not be interpreted to prohibit X,” and theoretically, that clarification should “save” a rule from being illegal. Pretty nifty, eh?
Now, before you think popping a Savings Clause into a social media policy will magically shield you from legal trouble, it’s a bit more complicated than that. The NLRB has spoken on Savings Clauses in social media policies since its Office of the General Counsel (OGC) issued the third memo on social media on May 30, 2012. The NLRB also weighed in on Savings Clauses in its September 18, 2012 decision striking down Costco’s social media policy (the first NRLB decision addressing social media issues); its September 25, 2012 decision striking down Echostar Technologies’ social media policy; and the OGC’s Advice Memorandum issued on October 19, 2012. The fact that the NLRB has issued all this “guidance” should give employers pause about thinking that Savings Clauses are simple to write. They’re not. But NLRB guidance suggests that Savings Clauses can be effective if written well.
Here are some tips on using Savings Clauses drawn from NLRB decisions and memos.
1. Having a Savings Clause is a good idea.
This might seem obvious, but it’s generally a good idea to include a Savings Clause in your social media policy. The NLRB was critical of Costco’s social media policy for not including any type of disclaimer stating that the policy was not intended to interfere with the employees’ rights to engage in activity protected by the NLRA. The NLRB did not go as far as to say that the policy’s other defects would have been cured by a Savings Clause, but the fact that it criticized a social media policy for not having any Savings Clause strongly suggests that having one could only help.
2. Savings clauses don’t save rules that explicitly prohibit concerted, protected activity.
There are some policies even a Savings Clause can’t make better. For example, the OGC’s May 30, 2012 Memo examined a policy that prohibited employees from posting information about employer shutdowns and work stoppages, and from speaking publicly about the workplace, work satisfaction or dissatisfaction, wages, hours, or work conditions. The Savings Clause in the policy stated:
This policy will not be interpreted in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.
The NLRB said that an employee reading the policy would reasonably conclude that the policy prohibited protected activities despite what the Savings Clause said. The lesson here is that a policy can’t forbid activity protected by the NLRA and then expect a Savings Clause to rescue the policy from being unlawful.
3. Use terms your employees can understand.
The Savings Clause in the policy we looked at in the last bullet point suffered from the additional problem of using the term “concerted activities.” The NLRB criticized the clause for not explaining to a layperson what the right to engage in “concerted activity” entails. Lawyers might understand what “concerted activity” or “protected activity” refer to, but employees without legal training might not. Avoid using legal terminology in the Savings Clause. Use plain English instead.
4. Don’t be vague.
A Savings Clause can’t be too vague, or it won’t end up “saving” anything. So what’s considered vague?
A Savings Clause stating that if the policy conflicts with law, “the appropriate law shall be applied and interpreted so as to make the policy lawful” is too vague, according to the NLRB’s Echostar decision. A good Savings Clause must be specific enough to give employees an idea of how the social media policy will be interpreted. A generic statement that the policy is intended to comply with the law means little unless the employer provides some context for the statement.
What if the Savings Clause made the policy subject to a specific law, like the NLRA? That’s better, but still not good enough. The OGC’s May 30, 2012 Memo disapproved of two Savings Clauses, one stating that the policy “will be administered in compliance with applicable laws and regulations (including Section 7 of the National Labor Relations Act),” and another stating that the policy “will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.” The NLRB found both Savings Clauses too vague to cure the policies from being overbroad.
So just how specific should a Savings Clause be? That leads us to–
5. Identify the kind of activity being “saved.”
The OGC’s October 19, 2012 Advice Memo emphasized the importance of drafting rules that provide employees with context. “[R]ules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, so that they would not be reasonably construed to cover protected activity, are not unlawful,” the Advice Memo explained. A Savings Clause can help provide the needed context. The Advice Memo approved of Cox Communications, Inc.’s social media policy, which contained the following Savings Clause:
Nothing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities.
This Savings Clause specifically identified the kind of activity that is permitted—employee communications regarding wages, hours, or other terms and conditions of employment—so as to eliminate any doubt that other rules in the policy might prohibit activity that is protected by the NLRA.
In sum, I hope these tips will help you get the most out of Savings Clauses.