Wednesday, July 2, 2014

This Time, NLRB Judge Doesn’t Fault Social Media Policy

When it comes to social media policies and the National Labor Relations Board, employers have been suffering from a serious case of whiplash.  First the NLRB General Counsel issued guidance on what employers’ social media policies could say. Then, an NLRB administrative law judge ruled that a policy which followed that guidance was unlawful under the National Labor Relations Act.  So if the NLRB can’t figure it out, how can employers?
 
A decision late last week may provide a bit of comfort or, depending on your perspective, may just confuse things more.
 
In a case involving Bubba Gump Shrimp’s now-defunct 2012 social media policy, a NLRB Judge found no violation of the NLRA.  Here’s what the policy said:
 
While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business.  This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.
The NLRB General Counsel – who argued that the policy violated the NLRA – claimed that the first sentence “chilled” protected employee speech by urging employees not to create “morale issues” by posting job-related information - presumably including wages or other grievances. (Under the NLRA, of course, employees have the right to take “concerted action,” including talking to one another, to address concerns about wages and other working conditions.) The judge disagreed with the General Counsel’s interpretation of the policy language, finding instead that when the first and second sentences of the policy are read together, the policy does not prohibit job-related social media content.  Rather, the policy only addresses the manner in which the content is communicated.  Simply put, the judge found that the policy said employees could make negative, company and job-condition-related statements, but should do so in a civil manner and without revealing personal information on others.
Keep in mind that this decision is an anomaly in social media policy cases.  More often than not, employers’ social media policies have been squarely in the NLRB’s crosshairs. While social media holds great promise of increased business and employee engagement, the NLRB’s approach to “the virtual water cooler” has dampened the enthusiasm of those who want to protect employer reputations from employee discontent.  Employers are simply not free to adopt or enforce blanket prohibitions on employees’ negative social media posts.  If they try, they risk legal consequences.
Last week’s decision, however, suggests that social media policies limiting the manner of social media usage, rather than the content, may be less risky.  While we wait for more clarity from the courts, it’s an approach worth considering.