The NLRB Weighs in Again on Civility - Civility Loses

by Davis Brown Law Firm
Contact

A lot of people are available to tell you how to best utilize social media, Twitter, Facebook, LinkedIn and other platforms to promote your brand, to promote yourself or even just the best way to share pictures of your cats.  However, I typically spend most of my time wondering how to manage the explosion of social media comments and postings when they negatively impact upon the workplace.  

For employers it has gotten significantly more difficult over the last several years to manage employee comments, particularly due to the efforts of the NLRB.  Employers have found it increasingly difficult to set some basic standards of confidentiality and politeness in terms of comments made about employers or co-workers.  There have been a number of memos from NLRB counsel, as well as cases which indicate that having limitations on how employees talk about work in their social media accounts can easily run afoul of NLRB requirements.  These requirements apply whether you are union or not.  

On April 1, 2014, the NLRB issued a determination in the Hills and Dales General Hospital case relating to its policies for professionalism and no, it wasn’t an April Fool’s Day joke.  (Hills and Dales General Hospital & Danielle Corliss, Case 07-CA-053556, 360 NLRB #70)  In this decision the NLRB determined that many of the policies contained within the Hills and Dales Employee Handbook were inappropriate.  These policies included statements that employees “will not make negative comments about our fellow team members” and “will not engage in or listen to negativity or gossip”.  That prohibition lets out most of the daily postings on Facebook.  Further, the NLRB disagreed with the ALJ’s prior decision which allowed a professionalism rule to stand, determining that the employer must also immediately cease and desist from “maintaining a work rule requiring that employees represent the employer in the community in a positive and professional manner in every opportunity.”  The NLRB determined that this might unduly chill employee comment.  This determination, taken in conjunction with prior determinations, such as a decision that an employer may not tell employees that information obtained during the course of an investigation should be kept confidential during the pending investigation, make it difficult for employers to enforce their mandatory equal employment opportunity, anti-discrimination and similar policies.  

Representatives from Hills and Dales General Hospital have indicated that it is their intent to appeal this ruling.  But, what to do now?  While the final ruling in Hills and Dales has not yet been made, it is clear the trend is to limit the kinds of rules employers may implement regarding civility.  Many employers have spent significant time on training for customer service, civility and co-employee interaction - only to be told these reasonable expectations might not be enforceable.  Regardless of the NLRB position, employers continue to have an obligation to enforce the law - including HIPAA, the Red Flag Rules, and anti-harassment.  Policies should focus on the big issues with clarity and specificity.  Just assume the employee will post “my boss is a jerk” at some point.  However, unless it is coupled with something more, the message from the NLRB is “just let it go”. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Brown Law Firm | Attorney Advertising

Written by:

Davis Brown Law Firm
Contact
more
less

Davis Brown Law Firm on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.