[authors: Doug Hass and Chris Johlie]
Social media and other employer policies continue to draw close scrutiny from the National Labor Relations Board (NLRB). Recently, the NLRB issued its first binding decision involving employees’ rights under a common social media policy in Costco Wholesale Corporation. As we reported earlier this month, the NLRB quickly used Costco Wholesale as the basis for its opinion in another case involving social media posts by an auto dealership employee.
The Costco Wholesale decision and other recent NLRB rulings such as Banner Health System are beginning to filter down to and guide the decisions of the NLRB’s administrative law judges. For example, in EchoStar Technologies, LLC, an ALJ applied recent NLRB decisions to find that several policies contained in the employee handbook violated employees’ Section 7 rights under the National Labor Relations Act (NLRA).
EchoStar had revised its employee handbook in April 2011 to include a new “Social Media” policy. The new policy prohibited EchoStar employees from making “disparaging or defamatory comments” about the company or “undermining” the company in social media. Consistent with other NLRB guidance and opinions on social media policies over the past two years, the ALJ found that the prohibitions against “disparaging or defamatory” comments or comments that “undermined” the company violated the NLRA. The ALJ rejected EchoStar’s reliance on the handbook’s reminders that employees should “[r]emember to use good judgment” or ask human resources if they have any questions, because he found they did not change the fact that employees would read “disparaging or defamatory” and “take the English language at its fair and correct meaning.”
The EchoStar social media policy also restricted employees from using social media “on Company time,” a phrase long disfavored under federal labor law as impermissibly broad when used in solicitation and distribution policies. The ALJ had no trouble applying the NLRB’s established precedent to strike down the “on Company time” restriction as another violation of employees’ Section 7 rights.
The ALJ wasn’t done. He applied the NLRB’s recent Banner Health System decision from earlier this year to strike down EchoStar’s handbook rule requiring employees to keep workplace investigations confidential. Citing Banner Health System, the ALJ held that EchoStar could not maintain a blanket restriction for every investigation, but instead must determine on a case-by-case basis whether the failure to maintain confidentiality would corrupt that particular investigation. The ALJ also ruled that the EchoStar policy impermissibly lacked temporal distinctions, meaning that it could apply even to closed investigations, and other limiting language, such as restrictions based on how the employee learned of the investigation.
Finally, the ALJ also took the opportunity to comment on the handbook’s general savings clause. While the EchoStar handbook did not contain a Section 7-specific clause, it did include a provision that deferred to applicable laws whenever the handbook’s policies conflicted with them. Echoing the NLRB’s general rejection of savings clauses like these, the ALJ held that language asserting that a document should be applied and interpreted in manner that complies with the law “does not save an otherwise invalid rule.”
As in many of these handbook and social media cases, the EchoStar unfair labor practice charge was filed by an individual, unrepresented employee, not a union or a lawyer, and contained no allegations of any union activity. Clearly, employers can expect the NLRB’s aggressive enforcement and provision-by-provision review of employer handbooks to continue. Union and non-union employers alike should be on notice of the need to carefully review handbooks and employment policies now, rather than trying to defend non-specific or overbroad policies before an unsympathetic NLRB.