Howard Rubin and Don Stait, The Daily Record Newswire
Social media websites are a relatively new phenomenon, and employer policies that establish what employees may post on those websites have been the (moving) target of labor disputes and litigation. The National Labor Relations Board last month issued an opinion that should help employers in this area.
Policies prohibiting damaging statements about the company or its employees
The NLRB ruled that employers could not enforce blanket provisions prohibiting damaging statements about their companies or employees. Such a policy would violate the National Labor Relations Act by chilling employees from publicly commenting about the terms and conditions of their employment.
For this reason, the NLRB found the following policy statement to be in violation of the NLRA: “Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the company, defame any individual or damage any person’s reputation . . . may be subject to discipline …”
Citing prior decisions, the NLRB suggested alternative language that would be permissible. The decision identifies several categories of unprotected speech that an employer could prohibit. The list included speech that is: (a) “malicious, abusive or unlawful;” (b) “profane language” and “harassment;” (c) “injurious, offensive,
threatening, intimidating, coercing, or interfering with” other employees; and (d) “slanderous or detrimental to the company.”
In other words, the NLRB supported the prohibition of the use of speech that falls outside of the NLRA’s protection.
Policies prohibiting employees from discussing co-workers’ health conditions
Some companies have received substantial civil penalties and stiff criminal sanctions because employees’ confidential health information was compromised. As a result, many companies have adopted overly broad policies in their attempts to limit their liability.
The NLRB found the following policy to be in violation of the NLRA: “Employees are prohibited from discussing private matters of members and other employees … including topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.”
According to the NLRB, this policy violates the NLRA because it lists private matters that relate to the terms and conditions of employment. An acceptable policy substitute, according to the NLRB, would be a policy that prohibits employees, whose job duties entail access to employees’ health information, from disclosing that information in any manner, including publication in social media.
Policies prohibiting employees from discussing their compensation
If an employer’s goal is to prohibit its employees from comparing paychecks, it will eventually find itself running afoul of the NLRA. An employee’s pay is clearly a term of employment, and limiting the employee’s right to share that information with co-workers is a violation of the NLRA.
If, however, the employer’s goal is to protect confidential information, the NLRB’s decision seems to suggest that a policy prohibiting employees from disclosing compilations of payroll data, when properly characterized as confidential business information, would not violate the NLRA.
Policies prohibiting disclosure of employees’ contact information
Prohibitions against sharing contact information are impermissibly broad, according to the NLRB’s decision. The problem here is that such a policy could hinder employees’ efforts to organize — a clear violation of the NLRA.
On the other hand, employers who are concerned with the privacy of their employees can prohibit the sharing of information obtained from the employer’s own files. The NLRB draws a distinction between information that employees learn “in the normal course of their work activity” (i.e., through discussions with co-workers) and information that employees learn from “their employer’s confidential or private records.”
Policies requiring employees to use “appropriate business decorum” in communications
Perhaps the biggest surprise in the recent NLRB decision was that policies requiring employees to use “appropriate business decorum” in their communications were upheld.
The NLRB reasoned that employers are allowed to establish rules intended to promote a “civil and decent workplace,” as long as a reasonable employee would understand the rule to be aimed at achieving that purpose. Moreover, employers need not define their terms or give clarifying examples.
The NLRB found acceptable policies that prohibit social media content that: (a) constitutes “insubordination … or other disrespectful conduct” to a supervisor; (b) is “disloyal, disruptive, competitive or damaging;” or (c) “tends to bring discredit to, or reflects adversely on,” the employee, co-workers or the company.
DOL promotes flexible work environment
The U.S. Department of Labor recently launched a new website devoted to workplace flexibility.
“Workplace flexibility,” a DOL spokesperson said, “is a universal strategy that promotes an inclusive workforce and levels the playing field for people with disabilities.”
The Worksite Flexibility Toolkit, launched to coincide with National Disability Employment Awareness Month, contains links to 172 resources. Visitors may access information on pending legislation, case studies, fact and tip sheets, frequently asked questions, issue briefs, reports, journal and news articles, slides, websites and other resources designed to educate both employers and employees on various legal and logistical aspects of workplace flexibility.
The website is available at www.dol.gov/odep/workplaceflexibility/.
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Howard Rubin is a shareholder in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or hrubin@littler.com. Don Stait is Special Counsel in Littler Mendelson’s Portland office. Contact him at 503-221-0309 or dstait@littler.com.
