NLRB Administrative Law Judge Rulings on Work Rules and Social Media Policies Continue to Perplex

by Proskauer - Labor Relations

NLRB Work Rules and Social Media Policies Continue to Perplex

The NLRB may be getting #SocialMedia, but confusion concerning employer work rules and social media policies became obvious yet again in Professional Electrical Contractors of Connecticut (June 4, 2014). In this decision, ALJ Raymond Green wrote that “a legitimate conflict of principles... will require Board and Appellate Court clarification” with respect to these rules, especially those concerning recording, taping and photographing while on the job.

The ALJ ruled in the following ways with respect to handbook policies which forbade employees from:

  • Disclosing the location and telephone number of employee customer assignments to outsiders
    • The ALJ found such a prohibition as to location is too broad as it could “inhibit” the ability of a union to meet and communicate with employees when on assigment, but that the restriction as to customer’s phone numbers is permissible as the employees already have their own work provided or personal cell-phones where they could be reached by the union or fellow employees.
  • Disclosing customer information to outsiders, including other customers or third parties and members of the employee’s family
  • The ALJ upheld this rule because it would not reasonably chill employees from talking to one another or the union about terms and conditions of employment.
  • The ALJ relied on prior Board decisions to strike down the rule because, as written, it would be “sufficiently imprecise” by encompassing any disagreement or conflict among workers protected by Section 7.
  • The ALJ found that since the rule so broad as to include personal computers, it overreached and thus was impermissible.
  • Despite the employer’s best intentions to protect customer privacy and confidentiality, the effect on the employees was considered the determinative factor. Thus, the ALJ struck down the rule, except to the extent that the customer explicitly prohibited photographing and filming on the customer’s premises. However, this ruling is in tension with a recent ALJ decision in Whole Foods Market (Oct. 30, 2013) which found such a rule permissible where the employer forbade recording of conversions or the use of such devices.
  • Boisterous or disruptive activity in the workplace
  • Initiating or participating in distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation
  • Forbidding photography, taping and recording any person, document, conversations, communication or activity that in any way involves the Company, its associates or customers or any other individual with which it is doing or intending to do business with

As demonstrated particularly by the ALJ’s disagreement with another ALJ concerning photographing and recording at the workplace, the NLRB’s policy concerning work rules and social media remains in a state of disarray. Further, if the ALJ’s ruling in this case stands, then the logical extension is that employers in similar circumstances will have to verify whether each customer or vendor with which they conduct business permits or disallows photographing and taping on their premises.

One can hope that eventually, as this and other cases wind their way to the Board and the courts, that unreasonable burdens like this will be replaced by more reasonable and practical policies, and that consistency will be brought to NLRB adminstrative law judge rulings and regional director complaints. In the meantime, the General Counsel has stated that he will focus on rules explicitly limiting employee rights to discuss wages and other terms and conditions of employment. Again, as these specific types of straight-forward cases become the target of General Counsel’s enforcement efforts, one can hope that the agency will move away from those unfair labor practice allegations which seem to be based mostly on theoretical, highly speculative allegations about how some employee might read some otherwise common sense rule.

Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.


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.

© Proskauer - Labor Relations | Attorney Advertising

Written by:

Proskauer - Labor Relations

Proskauer - Labor Relations 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):

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.


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 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:

- 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.