Post Summer Part 4 of 5 - Logos, Lids and Lenses

by Cozen O'Connor
Contact

Last week began this series of five posts to highlight five developments from this past summer in the area of social media and employment law. In Part 4 today: The use of company logos, and picture taking in the workplace.

The NLRB continues to be very active in the area of workplace policies and practices. On July 31, 2013, an Administrative Law Judge at the NLRB issued a decision in In Re World Color (USA) Corp. World Color prints commercial inserts in newspapers for other companies who seek to advertise sales, and maintained a workplace rule that prohibited employees from wearing baseball caps “except for Quad/Graphics baseball caps worn with the bill facing forward.” Apparently, there were safety concerns about employees wearing “gang insignia and symbolism” that, at least in part, prompted the policy. The policy was challenged on the basis that employees were precluded from wearing/displaying union insignia at work, which therefore infringed on their rights to engage in “protected concerted activity” under the National Labor Relations Act.

Balancing the company’s and employees’ competing interests, the ALJ found that the hat policy violated the employees’ rights because it “forbids or prohibits employees from displaying union logos, or for that matter other protected messages, on their hats, if they chose to wear hats.” The company was unable to demonstrate “special circumstances” indicating that a hat with a company logo was any safer, that a hat with a non-company logo would harm customer relations, or that there were – in fact – actual gang concerns. The World Color decision suggests that employees cannot easily be precluded from engaging in “protected concerted activity” – whether in dress code policies or through social media posts – unless the company can point to a specific protectable interest that trumps the employees’ interests.

The second noteworthy NLRB case this summer also involved a company’s logo, but this time through a policy banning the use of pictures or videos made in the workplace. On July 18, 2013, the NLRB released an advice memorandum that addressed social media guidelines promulgated by grocer Giant Food. Its policy prohibited, among other things, employees from using the company’s “logo, trademark, or graphics, which are proprietary to the Company” and also prohibited employees from taking “photographs or video of the company’s premises, processes, operations, or products” without prior written approval.

With regard to the use of logos, the NLRB found:

“Employees would reasonably understand the rule to prohibit the use of the Employer’s logo or trademark in their online Section 7 communications, which could include electronic leaflets, cartoons, or even photos of picket signs containing the Employer’s logo. . . .  [The company’s] interests are not remotely implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the Employer in the course of engaging in Section 7 activity related to their working conditions.”

And, with regard to picture taking:

“We further find that the portion of the rule prohibiting employees from photographing or videotaping the Employer’s premises is unlawful as such a prohibition would reasonably be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures or videos, such as of employees engaged in picketing or other concerted activities.”

Perhaps some lesser, more narrowly-tailored form of these rules would’ve been acceptable. It may have been the overbreadth that hurt this employer.

Employer Take Away: What should you as an employer take away from this development?

As you know from keeping abreast of employment law developments, so much is a balancing act between your company’s interests and those of your employees. Social media has increasingly blurred the lines because employees are more likely these days to express themselves collectively through social media, and to use social media to aid that expression. Are we using smart phones more as phones, or more as cameras to capture the moment in the workplace? Your company must engage in the balancing act, carefully, before doing something about it.

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.

© Cozen O'Connor | Attorney Advertising

Written by:

Cozen O'Connor
Contact
more
less

Cozen O'Connor 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.
Custom Email Digest
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.