In Medic Ambulance Service, Inc., 370 NLRB No. 65,the National Labor Relations Board (the “Board”), in a 2-1 decision, found that a company's policies, including its social media policy, that restricted employee communications were lawful under the Act.
The Board began its analysis by highlighting the standard announced in Boeing Co., 365 NLRB No. 154 (2017). Under the Boeing standard, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of rights under the Act, the Board will evaluate two things: (1) the nature and extent of the potential impact on rights under the Act; and (2) legitimate justifications associated with the rule.
Using this framework, the Board overruled the ALJ’s finding that the six challenged policies were unlawful. Each rule will be addressed below.
Rule Prohibiting Inappropriate Communications
Rule – In the introductory paragraph of the company’s social media policy, which contained eight “general and non-exhaustive guidelines,” it stated that “[i]nappropriate communications, even if made on your own time using your own resources, may be grounds for discipline up to and including immediate termination.”
In finding this provision lawful, the Board found that an objectively reasonable employee would not read the term “inappropriate communications” in isolation but would consider it in the context of the “guidelines” that followed. Because the Board did not find any of the guidelines unlawful on their face, it reasoned that this language did not violate the Act.
Rule Prohibiting Disclosure of Confidential Information
Rule – “Do not disclose confidential or proprietary information regarding the company or your coworkers. Use of copyrighted or trademarked company information, trade secrets, or other sensitive information may subject you to legal action. If you have any doubt about whether it is proper to disclose information, please discuss it with your supervisor.”
The Board found that an objectively reasonable employee would not interpret this confidentiality rule as potentially interfering with the exercise of Section 7 rights under the Act. Specifically, when read as a whole, the rule would not be reasonably understood by employees to prohibit the sharing of information pertaining to their terms and conditions of employment.
Rule Limiting Employees’ Use of Company’s Name in Social Media Posts
Rule – “Do not use company logos, trademarks, or other symbols in social media. You may not use the company name to endorse, promote, denigrate or otherwise comment on any product, opinion, cause or person.”
The Board initially noted that the first “guideline” of the social media policy directed employees to “make sure that the views expressed in social media are yours alone. Do not purport to represent the views of the company in any fashion.” Therefore, the Board reasoned, when reading the first “guideline” together with the rule above, an objectively reasonable employee would understand that this rule is aimed at preventing employees from speaking on behalf of the company rather than prohibiting employees from referring to the company by name in a post critical of the company’s terms and conditions of employment.
Rules Prohibiting the Posting of Photos of Coworkers
Rule – “Be respectful of the privacy and dignity of your coworkers. Do not use or post photos of coworkers without their express consent.” AND “Employees must not post pictures of company owned equipment or other employees on a Web site without obtaining written permission.”
The Board found that, when the rules were read in their totality, they strongly implied that their purpose was to protect the company’s confidentiality interests as well as employees’ privacy and dignity interests. Thus, an objectively reasonable employee would not read the rules as prohibiting Section 7 activity but rather as addressing those concerns by ensuring, for example, that photos an employee might find embarrassing will not be posted by a coworker on social media without his or her consent.
Rule Prohibiting the Sharing of Employee Compensation Information
Rule – “All telephone calls regarding a current or former employee’s position with our company must be forwarded to your supervisor. Only Rudy, Helen or human resources can give out any information on current or former employee compensation.”
The Board held that it is apparent that the rule is only intended to apply when someone calls the company seeking information about a particular employee, including how much he or she makes. An objectively reasonable employee would understand the policy in this light, and not as restricting their right to discuss their wages with each other or to disclose them to a union.
Rule Prohibiting the Use of Social Media to Disparage the Company or Others
Rule – “Employees must not use blogs, [Social Networking Sites], or personal Web sites to disparage the company, its associates, customers, vendors, business practices, patients, or other employees of the company.”
While the Board agreed that this rule would be reasonably interpreted to prohibit or interfere with the exercise of rights under the Act, the legitimate justifications for the company’s non-disparagement rule were substantial and outweighed the potential adverse impact of the company’s facially neutral rule on protected rights.
Board Member McFerran wrote a strongly worded dissent, in which she concluded that all of the rules upheld by the Board should have been found unlawful because, when fairly read, with an employee’s situation in mind, each rule is overbroad and infringes on employees’ Section 7 rights. Overall, she found that the decision illustrated how eager the Board majority is to uphold employer rules, how unwilling it is to consider rules from an employee’s true perspective, and how little weight it gives to the rights protected by the Act.
The Board is currently comprised of three Republican Members (Ring, Kaplan, and Emanuel), one Democratic Member (McFerran), with one open seat. With Emanuel’s term set to expire in August 2021, it should be expected that the Biden Administration will fill the open seat and replace Emanuel with Democratic Members. Once the Board achieves a democratic majority, employers should expect a return to the more employee-friendly legal framework regarding analyzing employer rules and policies that was in place during the Obama Administration. In the coming years, the Board will likely be revisiting many of the Trump-era decisions, with many of them likely to be overturned.
Employers are advised to consult with their legal counsel regarding specific questions or concerns. If you have any questions, or need assistance, please feel free to contact Jeremy D. Iosue or Jason T. Hartzell at (216) 651-0451.
This Employment Law Alert may provide an overview of specific federal and/or state laws and regulations. It is not intended to be, and should not be construed as, legal advice for any particular situation or individual.
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