The National Labor Relations Board (the NLRB or Board) and its administrative law judges continue to scrutinize employers’ social media policies, with additional guidance being released almost weekly. In a case involving Dish Network Corporation (Dish Network), an administrative law judge (ALJ) opined that the employer’s social media policy violated the National Labor Relations Act (the Act) in two respects:
The policy prohibited employees from making “disparaging or defamatory comments about DISH Network.” The ALJ compared this language to similar language that the Board found unlawful in another case involving a major retailer (“statements posted electronically . . . that damage the Company”) and a car dealership (prohibitions on “disrespectful” conduct and “language which injures the image or reputation of the [company]”). This is consistent with the current enforcement position of the NLRB’s Office of General Counsel, which has opined that blanket prohibitions on “disparaging” or “defamatory” comments are overly broad.
The Dish Network policy also prohibited employees from engaging in “negative electronic discussion” during “Company time.” The ALJ held that “rules, which ban union activities during ‘Company time’ are presumptively invalid because they fail to clearly convey that solicitation can still occur during breaks and other non-working hours at the enterprise.” The ALJ’s opinion thus appears to equate “negative electronic discussion” with “solicitation” without any real explanation.
The ALJ also held that Dish Network’s “Contact with the Media” policy violated the Act by requiring employees to obtain prior authorization from management before speaking about the company to the media or at a public meeting. Such policies have become a topic of increased scrutiny by the Board, which holds that employees have a protected concerted right to discuss their working conditions with the media. Employers with policies that cover employee speech to the media must strike a balance between the employees’ right to discuss their employment with the media and the employer’s legitimate interest in controlling who may speak on behalf of the company to the media.
Key takeaways for employers:
The Board’s general counsel (and at least one ALJ) apparently did not draw a distinction between the term “defamatory” (which implies a knowingly false statement) and the term “disparaging” (which does not connote either truth or falsity). Be careful to ensure that your social media policy does not prohibit “defamatory” speech.
When crafting a social media or solicitation policy, “working time” is almost always a better term than “company time.” The Board believes a rule prohibiting solicitation during “company time” indicates to employees that they cannot engage in solicitation while on meal or rest breaks.
Policies regarding contact with the media should not completely prohibit employees from speaking with the media about their employer, although a well-drafted policy may be able to dictate who speaks to the media on behalf of the company.
John T. Merrell is an associate in the Greenville office of Ogletree Deakins.