Policies on Employee Appearance and Social Media Use Declared Unlawful

By Nelson Cary and Ashley Manfull

Recently, the NLRB, in a three-member panel of Chairman Pearce (D) and Members Hirozawa (D) and Johnson (R), ruled on more employee handbook provisions covering an expanse of topics including social media, employee conduct, and dress and grooming.

In Boch Imports, Inc., the NLRB determined that the employer, a car dealer, violated the NLRA by maintaining a social media policy that (1) required employees to identify themselves when posting on-line comments about the employer, its business, or any policy issue; and (2) prohibited employee use of the employer’s logos in any manner.  A dress code/personal hygiene policy that prohibited employees who have contact with the public from wearing pins, insignias, and other message-bearing clothing was also deemed unlawful.

Social Media Policy

The NLRB reasoned that requiring employees to identify themselves when posting comments about the employer could be reasonably construed to cover comments about the employees’ terms and conditions of employment.  Similarly, prohibiting employees from using the employer’s logos “in any manner” would unreasonably include usage for the purpose of engaging in protected employee communications.  Therefore, the policies infringed on employees’ Section 7 rights.

The NLRB also adopted, without analysis, an Administrative Law Judge’s findings that the following portions of the employer’s social media policy were overly broad and impeded employees’ Section 7 rights:

• Prohibiting employees from referring to the employer in on-line postings that would negatively impact the employer’s reputation or brand;
• Prohibiting employees from engaging in conduct that “has or has the potential to have a negative effect” on the employer, even if the conduct occurs off the property and off the clock;
• Prohibiting employees from posting videos or photos that are recorded in the workplace;
• Requiring employees to contact the employer’s Vice President of Operations before making a statement to the media; and
• Requiring employees who choose to post on-line to do so “respectfully.”

Dress Code and Personal Hygiene Policy

The NLRB also held that the employer did not meet its burden of establishing special circumstances that would justify any portion of its rule prohibiting employee pins, insignia or other message-bearing clothing.  In order to maintain such a restriction, the employer must prove that wearing pins, insignia or other message-bearing clothing would jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established through a formal business plan.

The NLRB rejected the employer’s argument that its policy was necessary to protect the employer’s public image because the employer failed to prove that it maintained a strict uniform policy intended to create a specific and unique environment.  The NLRB also found the employer advanced insufficient evidence of safety and property damage concerns to justify the employer’s restriction against pins.  Further, even if such concerns were valid, the policy was not narrowly tailored to apply only to those individuals who may be impacted by the safety or property damage concerns.

On this issue, Member Johnson dissented.  He would have upheld the employer’s restriction on pins based on reasonable concerns that the cars the dealer sold were expensive and pins could scratch the cars or fall into a car’s mechanical workings.  Moreover, the employer proved that it experienced significant annual loss from property damage generally, even though it couldn’t tie that loss to employee pins specifically.

Summary

As the NLRB’s interpretation of handbook provisions continues to evolve, labor professionals are encouraged to actively monitor new NLRB decisions and periodically review and modify existing handbook provisions as necessary.