This article can also be found in the latest Employment Answers Quarterly e-newsletter
I actually really like my law firm, but if I wanted to say I hated it, the NLRB would protect me. In the most recent decision issued November 14, 2012, the NLRB attacked a company for having one policy that prohibits employees from making disparaging remarks and two other policies that limit what employees can say to the media and to government agencies. As stated in my last article, the NLRB has officially begun taking action against companies across the country related to various policies in their handbooks, including social media policies. The decisions in these cases demonstrate the NLRB is going to follow the stance outlined in the various advisory memoranda issued by their General Counsel over the last two years.
If you have provisions similar to the ones below in any of your handbooks or policy manuals or are considering including provisions like them, you want to think twice. See if you can guess why the NLRB said each of the policies below is prohibited.
Social Media
{Insert your Company Name} regards Social Media-blogs, forums, wikis, social and professional networks, … as a form of communication …. When the company wishes to communicate publicly … it has well-established means to do so. Only those officially designated by {Insert your Company Name} have the authorization to speak on behalf of the Company through such media ….
“You may not make disparaging or defamatory comments about [Company A], its employees, officers, directors, vendors, customers, partners, affiliates or our, or their, products/services …”
Unless you are specifically authorized to do so, you may not
-
Participate in these activities with {Insert your Company Name resources and/or on Company time ….
What’s wrong with this? 1) It bans employees from making “disparaging or defamatory comments about {Insert your Company Name}.”
“The NLRB has held that analogous electronic limitations on negative commentary violated the Act. See, e.g., Costco Wholesale Corp., 358 NLRB No. 106, slip op. at 2 (“statements posted electronically … that damage the Company.”); Knauz BMW, 358 NLRB No. 164 (2012) (“courtesy rule,” which prohibited “disrespectful” conduct and “language which injures the image or reputation of the Dealership.”)”
2) It bans employees from engaging in negative electronic discussion during “Company time.”
“The NLRB has found that equivalent rules, which ban union activities during “Company time” are presumptively invalid because they fail to clearly convey that solicitation can still occur during breaks and other non-working hours at the enterprise. See Laidlaw Transit, Inc., 315 NLRB 79, 82 (1994); Hyundai American Shipping Agency, 357 NLRB No. 80 (2011) (rule threatening discipline for [p]erforming activities other than Company work during working hours”); Norris/O’Bannon, 307 NLRB 1236, 1245 (1992).
Contact with the Media
The Corporate Communications Department is responsible for any disclosure of information, to the media regarding {Insert your Company Name} … Unless you receive prior authorization … you must direct inquiries to the Corporate Communications Department. Similarly, you have the obligation to obtain the written authorization of the Corporate Communications Department before engaging in public communications regarding {Insert your Company Name} or its business activities…
What’s wrong with this?
1) Requires employees to obtain prior authorization from management before speaking about {Insert your Company Name} to the media or at public meetings. See Trump Marina Associates, 355 NLRB 585 (2010).
“The NLRB has held that pre-authorization requirements unduly interfere with employees’ Section 7 rights to “improve terms and conditions of employment” by seeking assistance “outside the immediate employee-employer relationship.” See Eastex, Inc. v. NLRB, 437 U.S. 556, 565-566, 569-570 (1978); Valley Hospital Medical Center, 351 NLRB 1250, 1252 (2007); Handicabs, Inc., 318 NLRB 890, 896 (1995), enfd., 95 F.3d 681 (8th Cir. 1996).”
Contact with Government Agencies
Phone calls or letters from government agencies may occasionally be received … The General Counsel must be notified … of any communication … concerning the Company …
If written correspondence is received, notify your manger immediately and forward the correspondence to the General Counsel … The correspondence should not be responded to unless directed [to do so] …
If phone contact is made, …
-
-
-
Provide the individual with the General Counsel’s name and number …if requested, but do not engage in any further discussion ….
-
-
-
-
Immediately …notify a supervisor ….
-
What’s wrong with this?
1) Bans unauthorized communication with government agencies concerning {Insert your Company Name}.
“The NLRB has found that analogous policies, which could be rationally construed by workers as limiting independent communications with Board agents, were unlawful. See Knauz BMW, 358 NLRB No. 164, supra.”
The main take away from this latest decision is the NLRB is going to construe broad provisions which limit what employees can say over the internet, or to anyone outside the office, as violations of the Act. Companies need to be specific in their rules and provide examples to ensure it is clear to employees that the company is not prohibiting the rights an employee is guaranteed under the Act, i.e. the right to engage in protected concerted activity. If you have questions about your social media policies, contact our employment team.
