By: James Kachmar
Those of you who attended our November 15, 2012 seminar, “Risks and Benefits of Social Media and Computers in the Workplace,” heard us discuss recent actions taken by the National Labor Relations Board (“NLRB”) regarding Social Media Use Policies adopted by employers to address the many issues that may arise with the increased use of social media (Facebook, LinkedIn, Twitter, etc.) by their employees. As we mentioned, the NLRB was slow to address the issue of social media in the workplace. However, the NLRB has recently become much more active and more critical in how it views social media policies and their impact on the rights of employees to organize.
In 2011, the NLRB issued three advice memoranda that, while reaffirming employees are subject to the protections of the NLRA when engaging in “concerted activity” in online forums, advised that employers could take disciplinary actions when employees posted disparaging comments about their employer’s customers or supervisors if such comments were isolated and did not amount to “concerted” activity. (See NLRB Advice Memoranda in JT’s Porch Saloon, Wal-Mart and Martin House matters.) In September 2012, the NLRB finally issued its first official decision concerning social media use policies when it found that Costco’s social media policy violated the NLRA in that its prohibitions against employees making comments on social media that “damage the company” would result in a “chilling” effect on employees’ rights to organize or engage in concerted activity. (See Costco Wholesale Corp. and United Food & Comm’l Workers Union, Case No. 34-CA-012421.)
This week, the NLRB issued another decision that serves as a warning to employers who have adopted social media use policies. On November 14, 2012, an NLRB Administrative Law Judge reaffirmed the NLRB’s tougher view on social media policies in DISH Network Corp. and Communication Workers of America, Local 6171 (Case Nos. 16-CA-62433, 66142 and 68261.) In this case, DISH Network terminated an employee for allegedly violating safety policies on several occasions while working as a technician. The employee claimed that he had been terminated as a result of his union activities, including his support for the Union (which had been certified in 2010), his attendance at 2 bargaining sessions and his testimony at an unfair labor practice hearing shortly before his termination.
One of the issues that arose in this matter was the Social Media Policy contained in DISH Network’s employee handbook that was distributed nationally to all of its employees. That policy prohibited employees from making “disparaging or defamatory comments about DISH Network, its employees, officers, directors, vendors, customers, partners, affiliates or our, or their, products/services…” in social media outlets.
The ALJ found that DISH Network’s Social Media Policy violated the NLRA and constituted an unfair labor practice. He ruled that DISH Network “violated section 8(a)(1) of the [NLRA] by maintaining a Social Media policy in its Employee Handbook, which prohibited employees from electronically posting critical commentary about DISH Network on or outside of ‘Company time.’” The ALJ ordered that DISH Network republish its Employee Handbook, or at least the Social Media policy, by rescinding or amending the language prohibiting employees from using social media to post critical comments about DISH Network. The ALJ also ordered DISH Network to include an Appendix to the Employee Handbook advising employees that it had been found to have violated the NLRA and explaining how it had remedied the violation (as well as reminding employees of their rights to engage in concerted activity).
The growth of social media has had many benefits for companies seeking to promote their products and services. However, social media continues to provide challenges to employers in how they manage their employees’ use of such media. While employers are strongly encouraged to adopt such policies for the workplace, the recent decisions by the NLRB serve as a reminder that employers should seek legal advice when adopting social media policies to help ensure they do not run afoul of the NLRB’s increasingly critical focus.