NLRB Advice Memo Provides Insight on Unlawful Workplace Rules
Author: Beth Zoller, XpertHR Legal Editor
Date: August 13, 2013
In a recently released National Labor Relations Board (NLRB) Division of Advice (the Division), memorandum, Giant Food LLC (Giant), the NLRB determined that various clauses in Giant's social media policy were unlawful and that several work rules in its employee handbook were invalid because they violated the Section 7 right of employees under the National Labor Relations Act (NLRA) to engage in protected concerted activity. The memorandum is consistent with several previous NLRB decisions and sends important messages to employers. In particular, employers should be diligent when implementing and enforcing workplace rules, especially those relating to social media, confidentiality, photography and videos. In addition, employers' policies should be narrowly tailored using specifically defined terms, clear examples and unambiguous language. Employers should also bargain with unions over work rules that may be used as grounds for discipline.
First, the Division found that the employer should not have unilaterally implemented the social media policy without bargaining over its provisions, which are considered mandatory subjects of collective bargaining.
Second, the Division determined that employees could reasonably interpret the confidentiality clause as prohibiting them from disclosing information regarding their working conditions. In particular, the clause banning employees from disclosing "confidential, nonpublic information", was invalid because it was vague, failed to clarify the meaning of "confidential" and "nonpublic" and state that the rule did not violate the Section 7 rights of employees under the NLRA to discuss the terms and conditions of their employment. This determination follows prior NLRB rulings evaluating the lawfulness of confidentiality clauses.
Third, the Division found that the employer prohibited employees from using company trademarks or logos without the employer's prior written approval. This too violated the Section 7 rights of employees because the prohibition could reasonably be interpreted as precluding the use of the employer's logo and trademark in protected communications, such as picketing or union leaflets. The Division noted that while the employer had a proprietary interest in its trademarks, any noncommercial use in connection with protected union activity would not infringe upon the employer's rights.
Fourth, the employer's prohibition on employees taking photographs or making videos on the employer's premises, could be reasonably interpreted as infringing on the right of employees to use social media in order to share information through photos and videos and lawfully engage in protected concerted activity.
Finally, the Division also held that the employer's inclusion of a general savings clause stating that the guidelines would not be applied in a manner that improperly interfered with employees' NLRA rights or analogous state law was insufficient. This clause did not cure the overly broad and ambiguous language of the policy and otherwise illegal policy provisions. Therefore, the disclaimer was insufficient in that employees would not understand that protected activities were in fact permitted.
To learn more about social media policies and practices, on August 22, 2013 at 1pm EST XpertHR will host a free webinar by Brian J. Lamoureux, Esq. of Pannone Lopes Devereaux & West LLC on Social Media in the Workplace: Risks and Opportunities for HR Professionals. Click here to register.