The National Labor Relations Board Admonishes Nonunion Employers for Unlawful Social Media Policies

Client Alerts · May 9, 2016

The National Labor Relations Commission (the Board) held the media spotlight in 2011 when it pronounced to nonunion employers that they were restricted from disciplining employees who complain to their coworkers about their pay or working conditions on social media sites like Facebook and Twitter.  Union and nonunion employees alike are protected under the National Labor Relations Act (the NLRA) from discipline for taking part in discussions with other employees about their working conditions, which is commonly referred to as “protected group activity.” Employers cannot interfere with employees’ rights to discuss their working conditions, regardless of the forum they use.

Little media attention, however, has been devoted to the Board’s decisions and guidance on appropriate social media policies.  In recent cases involving social media postings, the Board has found that employers relied on overly restrictive social media policies in disciplining employees. The Board determined that these policies were in violation of the law because they restricted or created a “chilling effect” on employees who sought to discuss their wages and other working conditions.  As a result, the NLRB’s General Counsel released a guidance memorandum outlining the Board’s position on social media policies.

The Guidance puts forward the general proposition that any policy or rule that could reasonably be construed to prohibit protected group activity is prohibited.  The Guidance warns employers that they cannot limit employees’ ability to discuss workplace issues honestly with their coworkers.  The Guidance advises that typical employer-imposed rules requiring employees to be “respectful” of others, including management, might be considered unlawful because employees might infer that they cannot protest working conditions or criticize their employer.

In the wake of the Guidance, the Board has taken a keen interest in employee handbooks, with a particular focus on social media policies. Three recent cases are instructive on the Board’s views on social media policies:

1. In a case involving Landry’s restaurants (Bubba Gump Shrimp Co.), the Board considered whether the company’s social media policy violated the NLRA.  The policy urged employees not to post information regarding the company, their jobs, or other employees that could lead to morale issues in the workplace or detrimentally affect the business. The Board found that the company’s social media policy did not violate the NLRA because it did not “explicitly prohibit employees from posting their own job-related information or information regarding the jobs of coworkers, or personal information regarding coworkers, or information regarding the company.”  The Board concluded that Landry’s policy was acceptable because it focused on the manner in which employees communicated with one another, requiring employees to be civil, and did not seek to control the subject matter of their communications.

2. In a case involving Boch Honda, the Board found that the company’s social media policy violated the NLRA because it was overly broad and interfered with employees’ rights to engage in protected group activities.  The social media policy required employees to identify themselves when they posted comments on social media sites about the company.  The Board ruled that requiring employees to self-identify would create a chilling effect on an employee’s right to comment on the terms and conditions of employment.

3. An Administrative Judge at the Board issued a decision involving Chipotle Mexican Grill in which she found that Chipotle Mexican Grill’s social media policy violated the NLRA.  The policy instructed employees that they “could not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.” It also warned employees that their “online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.” In response to an employee’s tweets that were critical of Chipotle, the company demanded that the employee delete the critical posts. Chipotle ultimately terminated the employee. The Administrative Law Judge found, among other things, that Chipotle wrongfully terminated the employee and maintained an unlawful social media policy.  The Administrative Law Judge explained that the prohibitions against spreading incomplete, confidential, or inaccurate information and those against making disparaging, false, or misleading statements violate the NLRA because they chill employees’ rights to engage in concerted protected activity.  The Administrative Law Judge, however, did not find the prohibitions in the policy against harassing or discriminatory statements to be in violation of the NLRA.

These cases reflect the Board’s determination to carefully scrutinize workplace policies where those policies might infringe on employees’ ability to engage in protected group activities.  Employers should take note of this heightened focus and review handbooks and policies to ensure that they do not infringe on employees’ right to engage in protected group activities.

Prince Lobel will continue to closely monitor the Board’s ruling in this area, and will provide a timely update of important rulings.

If you have any questions regarding the above client alert, please contact  Claudia Centomini, the author of this alert, at  ccentomini@princelobel.com or Dan Tarlow, Practice Group Chair of the Employment Practice Group, at dtarlow@princelobel.com