We have been commenting on the National Labor Relations Board’s (NLRB) recent decisions on the lawfulness of social media policies. An NLRB Administrative Law Judge recently struck down a portion of a company’s social media policy that prohibited employees from commenting on work-related legal matters without the express permission of the company’s legal department.
The case of In re G4S Secure Solutions (USA) Inc. involved a host of alleged violations of the National Labor Relations Act (NLRA). One of the alleged violations concerned G4S’s social media policy. The policy prohibited employees from posting photos, images, or video of employees in uniform or at a G4S place of work on any social networking site. The policy also prohibited employees from commenting on work-related legal matters without express written permission from the legal department. The policy stated in bold, “This policy will not be construed or applied in a way that interferes with employees’ rights under federal law.”
The NLRA makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the NLRA. Section 7 of the NLRA guarantees employees’ rights to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. A workplace rule that explicitly restricts Section 7 rights is unlawful. If a rule does not explicitly restrict Section 7 rights, it will still be unlawful if (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
The NLRB found that the portion of the social networking policy prohibiting employees from commenting on work-related legal matters was unlawful because it reasonably would be construed as prohibiting protected activity. The NLRB rejected the employer’s disclaimer in the policy. The disclaimer said that the policy would not be construed or applied to interfere with employees’ rights under federal law. However, the NLRB judge said that lay employees cannot be assumed to have the knowledge to discern what is federal law and thus cannot know what actions are permitted under the disclaimer. Because employees cannot be expected to know what was permitted under the disclaimer and what was prohibited, the rule prevented employees from discussing working conditions and other terms of employment, in violation of the NLRA.
The NLRB upheld the portion of the rule prohibiting the posting of photographs on social networking sites. The NLRB reasoned that the rule did not ban the taking of photographs or workplace conditions but merely prohibited posting the images on social networking sites. The NLRB said that the prohibition was not an unreasonable impediment to self-organization.
The lawfulness of social networking policies remain in a state of flux. No doubt that G4S thought that the inclusion of the disclaimer language in its social media policy would protect it from a claim that the policy ran afoul of the NLRA.