Recently, the National Labor Relations Board (NLRB), in a split decision 2-1, approved a California-based ambulance company’s implementation of a social media policy that prohibited employees from “inappropriate communications” related to the company.  The NLRB’s ruling reversed a decision by an administrative law judge, back in October 2019, that concluded that the company’s social media policy was overly broad and infringed on worker’s rights established in the National Labor Relations Act (NLRA).

Key aspects of the company’s workplace social media policy included:

  • Prohibition on disclosure of proprietary or confidential information of the employer or co-workers.
  • Limitations on an employee’s use of the employer’s name, logo, trademarks, or other symbols in social media to endorse, promote, denigrate or otherwise comment on any product, opinion, cause or person.
  • Prohibition on posting of photos of coworkers without their written consent.
  • Prohibition on use of social media to disparage the employer or others.
  • Prohibition of “inappropriate communications” generally on social media.
  • Prohibition of sharing of employee compensation information.

The majority highlighted that, “[t]he legitimate justifications for the respondent’s nondisparagement rule are substantial, and we find that they outweigh any potential adverse impact of the respondent’s facially neutral rule on protected rights”.

NLRB member Lauren McFerran, the only dissenter, emphasized that the decision “again illustrates how eager the board majority is to uphold employer rules, how unwilling it is to consider rules from an employee’s true perspective and how little weight it gives to the rights protected by our statute.”

Back in a 2017, in Boeing Company, the NLRB set out a new standard for determining whether a facially neutral work rule, reasonably interpreted, would unlawfully interfere with, restrain, or coerce employees in exercise of their NLRA rights.  In Boeing Company, the NLRB overruled the “reasonably construed” prong established in Lutheran Heritage Village-Livonia (2004), which held that a work rule that did not otherwise violate the NLRA would be found unlawful if employees would reasonably construe it to prohibit NLRA rights. Instead, the NLRB held in Boeing Company that, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.

This evaluation system would, “strike the proper balance between . . . asserted business justifications behind the policies, on the one hand, and the invasion of employees’ rights in light of the Act and its policy.”

In the NLRB’s latest decision, analyzing the California ambulance company’s workplace social media policy, the NLRB relied on Boeing Company’s evaluation standard, and other NRLB decisions of late related to workplace social media policies.  For example, in July of 2020 the Board, citing Boeing Company, held in Motor City Pawn Brokers Inc  that “the work rules at issue fall squarely into the category of lawful, commonsense, facially neutral rules that require employees to foster “harmonious interactions and relationships” in the workplace and adhere to basic standards of civility.”

 Takeaway

When companies are faced with adverse social media activity or campaigns, whether it be by employees, customers, bloggers, etc., they frequently are unprepared to take the appropriate steps to investigate, or to weigh the legal, business, reputational, and related risks in deciding what actions, if any, to take.  For this is reason, it is important to have a clear workplace social media policy in place to help prevent the likelihood of such an incident or at least limit its impact.  But while the NLRB seems to be employer friendly of late in approval of such policies, it is important to tread carefully, aiming to develop a policy that achieves the company’s legitimate business interests without compromising its employees’ NLRA rights.  This is especially true as the NLRB’s current majority will change in summer 2021.

Print:
EmailTweetLikeLinkedIn
Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.