The National Labor Relations Board’s (NLRB) Division of Advice provided some much need guidance on what constitutes a permissible social media policy. On October 19. 2012, an Advice Memorandum was released recommending the dismissal of an unfair labor practices claim against Cox Communications. In making its determination, the NLRB found that enforcement of the company’s social media policy resulting in the employees termination did not violate or interfere with the employees’ Section 7 rights pursuant to the National Labor Relations Act (NLRA).
A policy that would “reasonably tend to chill employees in the exercise of their Section 7 rights” is a violation of Section 8(a). Section 7 of the NLRA permits employees to discuss terms and conditions of their employment and engage in concerted communications. The Board has developed a two-step inquiry in determining if an employer’s actions or policies constitute a violation of 8(a). First, a rule that explicitly restricts protected activities under Section 7 will be found unlawful. The next step is to determine if the rule, though not expressly restricting protected activities, nevertheless violates Section 8(a) if one of three possible conditions are met: 1) the language used in the rule can be construed as prohibiting Section 7 activity; 2) the rule was implement as a reaction to union activity; or 3) application of the rule restricted the exercise of protected activity.  The Board has also stated that “[r]ules that are ambiguous regarding their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that they do not restrict their Section 7 rights, are unlawful.”
In this particular instance Cox Communications terminated an employee after discovering lewd and vulgar comments posted to his Google+ account relating to a confrontation with a customer. Another employee sarcastically commented on the post. A supervisor discovered the employee’s post and reported the incident to management. Management placed the employee on paid suspended leave in order to investigate the matter during which additional inappropriate comments were uncovered. The employee’s termination rested on a violation of the company’s social media policy. The employee responded by charging that the social media policy was overly board resulting in unlawful termination. The social media policy stated in pertinent part:
DO NOT make comments or otherwise communicate about customers, coworkers, supervisors, the Company, or Cox vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age, race, religion, sex, sexual orientation, gender identity or expression, genetic information, disability, national origin, ethnicity, citizenship, marital status, or any other legally recognized protected basis under federal, state, or local laws, regulations, or ordinances. Those communications are disrespectful and unprofessional and will not be tolerated by the Company. . .
Ultimately, the Division determined that, in light of the policy and the circumstances surrounding the termination, the employer’s actions were lawful. In making this determination the Division found that the comments represented the employee’s personal frustration and did not relate to working conditions or wage & hours issues. Additionally, the comment posted by a co-worker was merely a response to the employee’s rant and not a solicitation or call to engage in group action.
The Advice Memo offers some helpful guidance as to what factors constitute a valid and enforceable social media policy. Employers should ensure that policy contains adequate limiting language whereby restrictions are clearly described. Furthermore, the social media policy in question in the Cox case contained a “savings clause” stating: “[n]othing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities. . .” Such a clause if stated specifically enough helps to ensure that employees will not interpret the policy as interfering with Section 7 Activities. Ensuring proper documentation and investigation of an employee’s violation of the social media policy will also aid and support enforcement efforts down the road.
A special thanks to Cynthia Thomas, a law clerk at Cullen and Dykman LLP, for helping with this post.