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

by Cozen O'Connor

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.

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