Social media

The New York Times published an interesting article yesterday summarizing the NLRB's recent focus on employer social media policies. This is a topic we have been following for many months. See our prior posts here.

The Times article correctly notes these rulings “apply to virtually all private sector employers” including non-union workplaces. It describes several recent cases and highlights social media policies issued or updated by several large employers, including Wal-Mart, GM and Costco. The New York Times article can be accessed in its entirety by clicking on the link below.

The New York Times – “Even if It Enrages Your Boss, Social Net Speech Is Protected”

2012 was a tough year for stare decisis when it comes to federal labor law. It seemed as though every other week (and sometimes more often) longstanding NLRB precedent was overturned or ignored. From dues check-off rules to bargaining-unit definitions, decades old rules were swept aside by a Board seemingly determined to tip the balance against employers (and frequently employees) in favor of unions. 2012 was also a year in which the NLRB sought to inject itself into issues long thought to be beyond its jurisdiction, including by invalidating arbitration agreements and at-will employment provisions in employee handbooks and finding social media policies that merely require civility by employees to be unlawful.

However, 2013 could find that all of the NLRB’s administrative actions, like the 9th Season of the television series Dallas, never really happened. Pending before the DC Circuit is the Noel Canning v. NLRB, just one of the many cases challenging the propriety of President Obama’s recess appointments to the NLRB. Should that case decide that the recess appointments were not proper, the actions of the NLRB since January 2012 would be voided, as they took place without a proper Board. Keep your eye out for these decisions as they have the potential for returning federal labor law to its pre-2012 status, at least temporarily. 

The Mayans predicted that the world would end in 2012. They were wrong. However, U.S. employers may well be feeling like life is over as they once knew it after the head-spinning events of 2012 in traditional labor law. And the scary thing is, the NLRB has just gotten started, folks, as it enters 2013 with a three-member majority, all of whom are pro-Union Democratic appointees.

Your friends at BTLaborRelations.com have decided to again ring out the old year with our unscientific ranking of the Top 10 Labor Law events of the past year. After putting our heads together, here’s what we came up with:

10. D.R. Horton and Arbitration Agreements. The Board started the year with an astonishing ruling that an arbitration agreement containing a class action waiver violated the NLRA because it infringed on the right employees have to "engage in concerted action for mutual aid or protection." The Board has stood by its decision and recently followed it in an advice memo despite the fact that the Supreme Court and the Courts of Appeals are – so far – turning a cold shoulder to it.

Board Finds Certain Arbitration Agreements Violate NLRA
California Court of Appeals Not Persuaded by D.R.　Horton　Inc. v. Michael Cuda
D.R.　Horton　Files Reply Brief in Appeal of NLRB Decision
In the Spirit of DR　Horton, ALJ Extends Protections to Job Applicants
NLRB ALJ Finds Employee Arbitration Policy Unlawful

9. Ho Ho’s and Hockey. Labor disputes have resulted in the shutdown of one American tradition and has caused a lock-out in another. As previously reported here, after the Bakers Union turned down a concessionary contract, Hostess announced that it was closing its doors and liquidating the Company. While out on the ice, the lights have remained off as the NHL and the NHLPA have continued to struggle to reach an agreement on a new collective bargaining agreement. Today is Day 104 of the lock-out. Here are links to our coverage of the lock-out.

NHL Labor Clock Ticking Entering the Labor Day Weekend
NHL-NHLPA Talks Appear Stalled?
NHLPA Seeks to Block Lockout Under Provincial Labour Law
NHL Lockout: Day 73
NHLPA Decertification in the Works?

8. Recess Appointments. The President’s recess appointments of NLRB members continue to be the issue that won’t go away. On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three-judge panel of the United States Court of Appeals for the D.C. Circuit. At issue is whether the appointments were legal. If the appointments were not legal, then it calls into question whether under New Process the NLRB had a quorum to act. Our prior posts on this topic can be found here.

7. Off-Duty Access. In Sodexo America, the Board ruled that a hospital policy restricting employees’ off-duty access violated Section 8(a)(1) of the NLRA. USC University Hospital in Los Angeles had an Off-Duty Access Policy which provided that off-duty employees were not allowed to enter or re-enter the interior of the Hospital or any other work areas outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. The Board found that policy to be overbroad and interfered with employee rights under Section 7 of the Act. Our prior post on this topic can be found here.

6. Quickie Elections and NLRB Posting Rules. The NLRB’s actions in promulgating new posting requirements and revising the election rules to create a "quickie" or "ambush" election made our Top 10 of 2011. And they’re back again because both of those initiatives have been held up by Court action and are still in litigation and on appeal. Perhaps 2013 will be the year when we finally know whether the rules are legal and will be applied or were unlawfully promulgated. Stay tuned. You can access all of our prior postings on these issues here and here.

5. Dues Deductions. The NLRB's relentless march towards dismantling years and years of U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues must be withdrawn from employee checks after the expiration of a collective bargaining agreement. The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 and held that after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union.

4. At-Will and Confidentiality Provisions. The Board continued to press its authority and jurisdiction over non-union workplaces in decisions dealing with routine at-will disclaimer acknowledgments and confidentiality policies for internal employer investigations. The Board has found both to be violative of employee rights under Section 7 of the Act. Board action in both of these areas is forcing employers to closely examine at-will disclaimers and the manner in which they conduct internal investigations. Here are our previous posts on these subjects.

3. The Holiday Blitzkrieg. The Board’s holiday gift to U.S. organized labor didn’t go unnoticed. In an avalanche of game-changing rulings, the Board acted to "gut" Beck rights for dues protestors; required employers to deduct union dues even after contract expiration dates; exerted jurisdiction over teachers in charter schools; required employers to pay taxes and social security costs on backpay awards; required bargaining over discretionary discipline in the time frame between union recognition and enactment of a first contract; overturned "Facebook firings"; and overturned a well-settled rule that protected witness statements from disclosure to the union.

2. Social Media. The Board clearly identified social media as a priority issue in 2012. During the year, Acting GC Lafe Solomon issued three separate guidance memos on social media in which the agency made it clear that it viewed most employer restrictions on off-duty work-related social media chatter to interfere with employee rights to engage in protected concerted activity. We’ve written about this issue repeatedly during 2012. You can find out prior posts here.

1. Right to Work. After years and years of no progress on Right to Work legislation, amazingly and somewhat surprisingly, Indiana and Michigan during 2012 became the 23rd and 24th states in the U.S. to pass Right to Work laws. Both are also the first Rust Belt states to pass the legislation. The actions of both states underscore the disconnect that is occurring in labor policy in the U.S. As federal labor policies continue to accelerate to the left, states such as Indiana, Michigan, Ohio, Wisconsin and Arizona try to hold the line. Looking forward to 2013, the dramatically differing directions of state and federal labor policy may prove to be one of the most interesting stories of the coming year.

We at the BTLabor Relations blog thank you for staying with us during 2012 and hope you continue to follow us in 2013. Happy New Year!

The NLRB, in its first decision on a pending Facebook discharge case, has decided to side with the decision of a Board ALJ and find that a car salesman's posting of pictures and comments on Facebook was not protected concerted activity. Specifically, the Board affirmed the ALJ’s finding that the salesman was discharged for posting pictures of (and sarcastic comments about) a new Land Rover which had been driven into a pond by a customer’s 13-year old son at a sister dealership across the street.  The Board agreed that the salesman had not been terminated for Facebook comments critical of the food and drink the dealership had purchased for a promotional event for the new 5 series BMW.

But the Board couldn't just leave it at that. Amazingly, the Board also decided that the car dealership's "courtesy" rule regarding employee communications could reasonably be found to chill employee Section 7 activity.  The rule stated: "Courtesy: Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership."  The Board concluded that this language was unlawful because "employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the Respondent— that object to their working conditions and seek the support of others in improving them."  The Board ordered the company to remove the unlawful language and re-publish its work policies.

A link to the Board’s press release announcing the decision can be accessed here. The release contains a link to the Board’s actual decision.

On Sept. 7, 2012 the NLRB issued its first decision on a social-media policy, overturning an ALJ decision and finding that Costco Wholesale Corp.’s social-media policy violated Section 8(a)(1) of the NLRA by inhibiting employees’ from exercising their rights under Act.

Costco’s policy stated, in pertinent part, that statements posted electronically that “damage the Company, defame any individual or damage any person’s reputation” could potentially be grounds for discipline, up to and including termination. The ALJ had ruled that employees would not reasonably construe the policy as regulating NLRA protected conduct, but rather would reasonably infer that Costco’s purpose in promulgating the rule was to ensure a “civil and decent workplace.”

Then on review to the NLRB in Washington, the Board held that the rule, though not explicitly prohibiting Section 7 activity and not specifically in response to any union activity, “clearly encompasses concerted communications protesting [Costco’s] treatment of its employees” and, therefore, employees “would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of the [Costco] or its agents).” The NLRB also noted that nothing in the rule excluded protected activity from its broad prohibitions. This combination of factors led the NLRB to find that the rule had a “reasonable tendency to inhibit employees’ protected activity and, as such, violates Section 8(a)(1)”.

Though this is the first social-media policy case decided by the NLRB, there is little chance that it is the last.  Now would be a good time for employers to speak with knowledgeable labor counsel about their social-media policies. The Costco case can be found here.

In a report issued on Sept. 13, 2012 but made public on Sept. 17, the NLRB's Office of the Inspector General (the “IG”), found that the NLRB's Acting General Counsel, Lafe Solomon, violated ethics rules by “personally and substantially” participating in an official capacity in a matter in which he had a financial interest.

The IG's report explained that in spite of knowing that he may not have been properly permitted to participate in deciding the merits of a charge against Wal-Mart because he owned stock in the company, Solomon nevertheless participated in a January 2012 meeting regarding a charge involving Wal-Mart's social media policy. Solomon's concern arose out of his owning approximately $18,000.00 in Wal-Mart shares.  According the IG's report, aside from attending the January meeting, Solomon reviewed the Advice Memorandum regarding Wal-Mart's policy, met with the NLRB's Division of Advice staff, made a decision that further work was needed before a decision on the merits of the issue could be made, and directed his subordinates to contact the Wal-Mart representatives to attempt to reach a resolution that would negate his need to make a decision on the merits of the charge.

About a week after the meeting at issue, Solomon sought an ethics waiver from the NLRB's ethics officer, but was denied. As a result of the denial, Solomon sold his shares in Wal-Mart.  The OIG, however, found that his earlier attendance of the meeting and directives surrounding the issue were already violative. On the other hand, the OIG found no evidence that Solomon acted with intent to enrich himself or otherwise achieve any financial benefit. Instead, the OIG found "a complete failure of the NLRB's ethics program with regard to the operations of the Office of the General Counsel and that the environment at the NLRB in which this violation occurred was dysfunctional and adversarial."

While the IG report does not recommend any remedial action other than for an appropriate system of control to be instituted, it is likely that Mr. Solomon will face substantial scrutiny going forward. The House of Representatives Education and Workforce Committee's Chairman, Congressman John Kline issued the following statement on the matter: “Any charge of illegal action by a public official is a serious matter. The IG report makes troubling allegations that acting General Counsel Solomon’s participation in a case in which he held a financial interest was both criminal and unethical. Such behavior is unacceptable. As a public servant, Mr. Solomon has a responsibility to adhere to the highest standards of ethical conduct. I plan to carefully review the report and assess the need for additional action in light of its findings.”

A copy of the IG Report Can be found on the Committee on Oversight and Government Reform's website.

A copy of Mr. Solomon's response can be found here.

On May 31, Barnes & Thornburg's Labor and Employment Law Department issued a legal Alert that contains an in-depth overview of the National Labor Relations Board's recent memorandum regarding social media in the workplace. An excerpt from the Alert is included below. To download a PDF of the Alert in its entirety, click on the link at the end of this blog post.

A.      Executive Summary.

On May 30, 2012, the National Labor Relations Board’s (NLRB) Acting General Counsel Lafe Solomon issued a memorandum regarding social media policies in the workplace, the third such memorandum in recent months. The memorandum provides numerous examples of employer policies that ran afoul of the National Labor Relations Act (NLRA), and a few examples where employers “got it right.” While it remains to be seen whether the NLRB’s interpretations are supported by the courts, employers should recognize that these policies are a top enforcement priority for the NLRB and proceed with great caution when drafting and enforcing social media policies against employees.

B.      Background:  How The National Labor Relations Act Is Implicated by Social Media Policies.

Section 7 of the NLRA gives employees the right to form, join, or assist labor organizations. It also guarantees employees the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.  Even in the absence of a labor union, an employee complaining about wages, hours or working conditions on behalf of himself or herself and other employees cannot be disciplined or discharged for such conduct under the NLRA. This can include communications via social media, even outside of work. Therefore, the General Counsel’s memorandum is applicable to unionized and non-unionized workforces alike.

This blog post was originally issued as a Barnes & Thornburg LLP legal Alert. Download a PDF of the entire Alert at the Barnes & Thornburg website.

On May 30, 2012, Lafe Solomon, the NLRB's Acting General Counsel (the “AGC”), released a third report on social media cases brought before the Board. This report deals with seven different cases involving social media policies, covering topics such as the use of social media and electronic technologies, confidentiality, privacy, protection of employer information, intellectual property, and contact with the media and government agencies. 

In the first six policies reviewed, the AGC concluded that at least some of the provisions in the employers' policies and rules were overbroad and, accordingly, unlawful, under the National Labor Relations Act (NLRA). Importantly, the Board found that the savings clauses in these otherwise unlawful policies did not save the policies. Only the final social media policy reviewed by the AGC was found to be entirely lawful. 

In finding the final reviewed policy lawful, the AGC pointed to the policies substantial use of examples of allowed and proscribed behavior.  Specifically, the AGC stated that “rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they could not reasonably be construed to cover protected activity, are not unlawful.”

We'll post a more detailed analysis on the report in the coming days. In the meantime, the report itself can be seen here.

The NLRB has continued its assault on employer social media policies and a recent Administrative Law Judge ruling from the Board further complicates the issue. The Acting General Counsel, in his various reports on the Board’s social media cases, has made it clear that employers need to include disclaimers in their policies that nothing in the policy is meant to interfere with employee Section 7 rights.   However, a San Francisco-based ALJ, in a lengthy opinion dealing with the social media policy of G4S Secure Solutions (USA) Inc., struck down that company’s social media policy even though it included such a disclaimer.

Specifically, the ALJ found that G4S’s policy was overbroad and would chill the exercise of Section 7 rights by employees of the company.  G4S’s policy stated, “This policy will not be construed or applied in a way that interferes with employees’ rights under federal law.”  The ALJ expressly determined that “it cannot be assumed that lay employees have the knowledge to discern what is federal law, and thus permitted under the disclaimer, as opposed to what is prohibited ‘legal matter’.”  Though the ALJ did not go beyond that, the clear suggestion from the opinion is that a disclaimer of noninterference with Section 7 rights must be far more particular in explaining what types of rights are, in fact, protected under Section 7 and, thus, not prohibited under an employer’s social media policy.  Of course, most employers are reluctant to spell out in detail in their own policy manuals exactly what types of activity employees may engage in as protected activity under Section 7 of the NLRA.

The judge’s ruling also struck down that portion of the company’s policy forbidding employees from commenting on work-related legal matters, but allowed a provision that prohibited the posting on social media sites of pictures of employees in their security uniforms.

A full text of the ALJ’s ruling in G4S Secure Solutions can be reviewed here.