NLRB General Counsel's Office Pans Electronic Communications and Social Media Policies; Notes Implications if Register Guard is Overturned

Practical Law Legal Update 5-540-2565 (Approx. 8 pages)

NLRB General Counsel's Office Pans Electronic Communications and Social Media Policies; Notes Implications if Register Guard is Overturned

by Practical Law Labor & Employment

Alpine Access, Inc.

Under Register Guard, an employer may lawfully prohibit solicitation based on the subject area of the communications involved as long as it does not divide permissible from impermissible solicitations on a Section 7 basis. The employees in Alpine Access, Inc. all worked from home, and interacted with one another via employer-sponsored chat rooms and the employer's internal e-mail system. In this virtual workspace, the Division of Advice found that Register Guard's conclusion that employees lack NLRA rights to use employers' e-mail systems for Section 7 activity did not apply, as employees had no means of communicating with one another other than through e-mail. However, the Division of Advice also argued that:

Register Guard should be overturned.
The Board should presume that employees have a statutory right to use their employer's communications systems for Section 7 communications, subject to the employer's need to maintain production and discipline.

Because of the virtual nature of the workplace, the Division of Advice also found the employer's electronic communications policy, which precluded its employees from using its communication systems for Section 7 activity on nonworking time, was unlawful. The fact that employees could communicate with one another without using the employer's equipment or systems, such as through Yahoo Instant Messaging, was irrelevant.

The advice memorandum also condemned the employer's reaction to union organizing activity in its workplace. In response to an employee's union organizing activity, the Division of Advice found the employer unlawfully:

Disabled the private chat function in the employer's chat rooms.
Via a supervisor, e-mailed other employees telling them not to speak with the organizing employee and asking them to contact the supervisor if they were approached by the employee.
E-mailed the employee, advising him that employees were not permitted to use company e-mail or resources for union activity.

Finally, the advice memorandum found that the employer's non-disclosure agreement and confidentiality and media relations rules were unlawfully overbroad, as they infringed on employee discussions of the terms and conditions of their employment.

The Division of Advice endorsed using Alpine Access as a vehicle for requesting that the Board overrule Register Guard. If Register Guard were overturned, it would be unlawful for an employer to:

Prohibit during "working hours" (although a "working time" prohibition might be acceptable):
- instant messaging or e-mailing, as that would prohibit Section 7 communications; or
- surfing the web, because the web is a source of a wealth of information relevant to Section 7 activity.
Require both the sender and the recipient of Section 7 communications to be on nonworking time when a message or e-mail is transmitted; the sender should be permitted to send an e-mail on his nonworking time, regardless of whether the recipient is working (as the recipient can wait to read the message until he is not on working time).

The advice memorandum did not specify how this argument might apply to workplaces where employees are expected to review every e-mail when it is received, or employers' anticipated concerns that productivity will suffer if employees must scan each incoming e-mail during working time to determine whether it is work-related or should be ignored until nonworking time.

Price Edwards & Co.

In Price Edwards & Co., the Division of Advice also argued that the case should be used as a vehicle for asking the Board to overrule Register Guard. In its advice memorandum on Price Edwards, the Division of Advice found the employer violated the NLRA by:

Instructing an employee not to access Facebook while at work.
Instructing the same employee to never air work-related complaints on Facebook.
Maintaining an electronic communications policy that prohibited:
- the disclosure of salary information; and
- inflammatory communications.

However, the Division of Advice found that the employee's specific complaints on Facebook were unprotected gripes, and not concerted activity or solicitations of concerted activity.

In addition to the policy itself being unlawful, the Division of Advice also suggested that the employer's enforcement of the policy was discriminatory, as the employer permitted an employee's incidental personal use of the employer's electronic communications systems without including Section 7-neutral limitations as permitted under Register Guard. In other words, an employer may not maintain a policy that prohibits non-business communications but enforce that policy only when employees engage in Section 7 communications.

Laboratory Corp. of America

In Laboratory Corp. of America, the Division of Advice found unlawful the employer's prohibitions on:

Disclosing confidential information outside of the company, as employees could reasonably read the prohibition to include information regarding the terms and conditions of employment. The provision also failed to provide any context or examples of the types of information deemed confidential to clarify the prohibition.
Using the company's name and trademarks without the employer's prior approval, as employees have a right under Section 7 to use their employer's name or logo in connection with protected concerted activity. The Division of Advice noted that although an employer has a proprietary interest in its service marks, employee use in conjunction with Section 7 activity would not infringe on that interest.
Raising work-related concerns on social media without first discussing them with supervisors, as this would inhibit discussions of employment terms and conditions with unions or fellow employees to initiate concerted activity.
Talking to the media without prior approval, as Section 7 protects employee communications to the public that are related to ongoing labor disputes.

The employer's communications systems policy also included the following prohibitions:

While LabCorp [the employer] encourages open communication both internally and externally in all forms, it is expected that such communication is made in an honest, professional, and appropriate manner and does not contain defamatory or inflammatory comments regarding LabCorp and its subsidiaries, as well as their shareholders, members of the Board of Directors, officers, employees, customers, suppliers, contractors and patients. . . .

Employees ordinarily may not identify themselves as employees of LabCorp or its subsidiary companies, absent approval by their Manager. . . . Employees who have identified themselves as LabCorp employees on media site [sic] may post comments but only if they expressly state that their comments are their personal opinions and do not necessarily reflect the opinions of LabCorp. . . .

The Division of Advice found that the prohibition against inflammatory communications and the requirement that employees limit themselves to professional and appropriate comments was unlawfully overbroad, a finding that seems to imply that labor issues are by their nature inflammatory and unprofessional. In addition, the Division of Advice found the prohibition against identifying oneself as a LabCorp employee without a disclaimer could interfere with publicizing a labor dispute or engaging in concerted discussions with other employees on social media.

The Division of Advice argued that forcing employees to use a disclaimer about personal opinions every time they posted on social media would significantly burden their right to discuss the terms and conditions of their employment. Although the Division of Advice did not address the issue, this argument appears to undercut Board precedent permitting employers to select their spokespeople and prevent non-spokespeople from making representations to the public as if they were speaking for the employers.

Although the Division of Advice found these portions of the employer's policies unlawful, they held that employees involved in the ULP charge who were discharged under the policy for comments made on social media about a physical altercation with a supervisor lawful, as the employees' conduct was not protected and did not implicate Section 7 concerns.

Corning Hospital

Finally, in Corning Hospital, the Division of Advice found a provision in the employer's social media policy asking employees to "[b]e respectful and professional" was acceptable under the NLRA. The full provision read:

Be respectful and professional to fellow employees, business partners, competitors and patients. Do not use unprofessional online personas.

Unlike language in many other policies, the Division of Advice found that this provision was not an unlawful restraint on Section 7 activity because:

The context of the provision could not reasonably be construed to:
- prohibit criticism of the employer or its agents; or
- otherwise restrict employees' Section 7 activity (in contrast to other similar policies, where that kind of language was followed by language requiring workers to avoid discussing inflammatory topics or engaging in unprofessional communication).
Nothing in the provision or the rest of the social media policy could reasonably be read to interfere with employees discussing with one another:
- working conditions;
- union representation; or
- other NLRA-protected topics.

NLRB General Counsel's Office Pans Electronic Communications and Social Media Policies; Notes Implications if Register Guard is Overturned | Practical Law