By Nelson Cary and Ashley Manfull
On the heels of last month’s NLRB decision in Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept. 7, 2012), an administrative law judge (“ALJ”) for the NLRB has issued a new opinion finding portions of an employer’s social media policy unlawful, and directing the employer to remove other policies.
In Echostar Technologies, LLC, Case 27-CA-066726 (pdf), the ALJ initially analyzed the employer’s social media policy, contained in its employee handbook. The policy prohibited employees from making disparaging comments about the Company, its officers, directors, vendors, customers, or the Company’s services and products. The ALJ found that the prohibition on “disparaging” comments violated the NLRA.
The social media policy also prohibited use of personal social media, such as blogs, forums, social networks, virtual worlds, etc., using Echostar resources and/or while on “company time.” The ALJ found this policy to violate the NLRA. Relying upon well-established NLRB precedent in the area of solicitation and distribution policies, the ALJ held that the concept of “company time” is too broad a formulation. The ALJ’s decision on this aspect of the policy demonstrates how rules that have been around for a long time can be applied to the new era of social media.
Further, the ALJ reiterated the NLRB’s holding in Hyundai America Shipping Agency, Inc., 357 N.L.R.B. No. 80 (2011), and more recently, Banner Health System, 358 N.L.R.B. No. 93 (2012), finding that Echostar’s rule requiring all employees to maintain confidentiality regarding any Company investigation was a violation of the NLRA. The ALJ determined that the Company could not issue such a blanket restriction on every investigation, but instead must conduct a case-by-case analysis of each investigation to determine whether corruption of the investigation would likely occur if employees were not instructed to maintain confidentiality.
Finally, the ALJ found that Echostar violated the NLRA by including “insubordination” as grounds for disciplinary action where insubordination was defined as “the refusal to follow a reasonable work directive or undermining the Company, management or employees.” The ALJ determined that employees could reasonably interpret “undermining the Company” as interfering with their Section 7 rights to raise complaints about various work conditions.
The ALJ rejected Echostar’s arguments that a general disclaimer in its handbook cured any defect in the policies above. The disclaimer Echostar’s relied upon stated that if there was a conflict between a policy and the law, the law would prevail. Echostar further instructed employees to contact human resources if they had questions about the application of any policy. The ALJ did not address whether a more specific disclaimer, explicitly referencing employees’ Section 7 rights, may be sufficient to save an employer’s policies.
As the most recent decision indicates, the NLRB’s fine-tooth review of employer handbook policies is not likely to lose momentum anytime soon. While the ALJ’s decision will get reviewed, and may be modified, by the NLRB, labor professionals should nonetheless carefully review all employment policies to ensure that they are specific and narrowly tailored, explaining exactly what type of conduct is restricted.