NLRB Finds that Social Media Policy in Employee Handbook Did Not Violate the NLRA | Practical Law

NLRB Finds that Social Media Policy in Employee Handbook Did Not Violate the NLRA | Practical Law

In Landry's Inc., the National Labor Relations Board (NLRB) found that a restaurant's social media policy did not violate the National Labor Relations Act (NLRA). The NLRB found that when reading the policy in context, employees would not reasonably construe the policy as prohibiting Section 7 activity, but rather as intended to foster civility and morale in the workplace. 

NLRB Finds that Social Media Policy in Employee Handbook Did Not Violate the NLRA

Practical Law Legal Update 2-609-4845 (Approx. 5 pages)

NLRB Finds that Social Media Policy in Employee Handbook Did Not Violate the NLRA

by Practical Law Labor & Employment
Published on 21 Apr 2015 • USA (National/Federal)
In Landry's Inc., the National Labor Relations Board (NLRB) found that a restaurant's social media policy did not violate the National Labor Relations Act (NLRA). The NLRB found that when reading the policy in context, employees would not reasonably construe the policy as prohibiting Section 7 activity, but rather as intended to foster civility and morale in the workplace.
On April 16, 2015, the panel (Board) heading the NLRB's judicial functions found in Landry's Inc. that a restaurant's social media policy did not violate Section 8(a)(1) of the NLRA. The Board asserted that when reading the policy in context, employees would not reasonably construe the policy as prohibiting Section 7 activity, but rather as intended to foster civility and morale in the workplace. The Board's short opinion affirmed the decision of an administrative law judge (ALJ) dismissing the NLRB's complaint. (362 N.L.R.B. slip op. 69 (Apr. 16, 2015).)

Background

The employer, Landry's Inc., operates restaurants including the Bubba Gump Shrimp Co. Landry's maintained the following social media policy in its employee handbook issued in May 2012:
"Social media includes all forms of public, web-based communications and expression that brings people together by making it easier to publish content to many individuals. The Social Media Policy applies if you are authorized to represent the Company on social media platforms or if you choose to make references to the Company, its affiliates or officers when you are using social media in a personal capacity. In order to post on external social media sites for work purposes you will need prior approval from the Vice President of Marketing and acknowledge receipt of the Company’s Standards for Social Media Representatives. While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission. You are personally responsible for the content you publish on blogs, wikis, or any other form of social media. Be mindful that what you publish will be public for a long time. Be also mindful that if the Company receives a complaint from an employee about information you have posted about that employee, the Company may need to investigate that complaint to insure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue. If you identify yourself as a Landry’s employee or discuss matters related to the Company’s business on social media, please remember that although you may view your site as a blog or a personal project and medium of personal expression, some readers may nonetheless view you as a de facto spokesperson for the Company. You must make it clear that the views you express are yours alone and that they do not necessarily reflect the views of the Company. To help reduce the potential for confusion, please put a disclaimer in a prominent location on your page. For example, “The view expressed on this web site/blog are mine alone and do not necessarily reflect the views of my employer.” Without prior written approval from the Vice President of Marketing, no employee shall use any words, logos, or other marks that would infringe upon the trademark, service mark, certification mark, or other intellectual property rights of the Company or its business partners. All rules that apply to employee activities, including the protection of proprietary and confidential information, apply to all blogs and online activity."
This policy was in effect when Landry's terminated one of its employees, Sophia Flores. The policy was ultimately superseded by a new social media policy contained in an updated edition of Landry's employee handbook issued in October 2013, two months before Flores filed an unfair labor practice (ULP) charge in December 2013. The regional office investigating Flores' charge found that her termination did not violate the NLRA, but that Landry's social media policy from the 2012 version of the employee handbook violated the NLRA. The NLRB's General Counsel argued that the above bold portion of the policy was unlawful because employees would reasonably construe it as prohibiting Section 7 activity. An ALJ disagreed, and the NLRB's General Counsel excepted to the ALJ's finding.

Outcome

The Board (Members Miscimarra, Hirozawa, and Johnson) affirmed the ALJ's decision, finding that the portion of Landry's social media policy addressing postings made by employees on social media sites:
  • Did not violate Section 8(a)(1) of the NLRA because it would not reasonably be construed by employees as prohibiting activity protected by the NLRA.
  • Contained modifying language referencing "morale" and "being civil to others and their opinions," which reflected the policy's intention to:
    • address the manner in which employees posted, not the substance of their postings;
    • foster civility and good morale among employees; and
    • avoid workplace harassment and dissension among employees that could adversely affect Landry's business.
  • Did not expressly or implicitly prohibit employees from discussing personnel information, wage-related information or information about employee workplace complaints.
  • When read in context, was intended to address areas like social relationships and private matters among employees by restricting the posting of "personal information."
The Board pointed out that its decision relied on certain facts, including that Landry's social media policy from 2012:
  • Had been superseded by a new policy in 2013, which was not alleged to be unlawful.
  • Had not been enforced in relation to Section 7 activity.

Practical Implications

The Board's decision in Landry's Inc. provides further guidance on the issue of whether a social media policy infringes on employees' Section 7 rights. Although the General Counsel argued unsuccessfully that this policy was unlawful, employers should continue looking to the General Counsel's recent guidance on the issue of social media policies. For more information, see Legal Update, NLRB General Counsel Red Flags Common Terms in Employment Rules. Key takeaways from the NLRB's guidance and the Board's decision in Landry's Inc. are that social media policies:
  • Expressly prohibiting discussions or postings concerning "personnel information," "wage-related information" or "payroll information" will generally be found to violate the NLRA.
  • Including modifying language about the importance of maintaining workplace civility, harmony and morale may pass muster under the NLRA.
  • Restricting or setting specific parameters as to what workplace issues can be discussed will likely be found to infringe on employees' rights to engage in protected concerted activity.