Requiring Blog Post Viewpoint Disclaimer Lawful; Handbook Confidentiality Provisions and "On Duty" Restrictions Unlawful: NLRB General Counsel's Office | Practical Law

Requiring Blog Post Viewpoint Disclaimer Lawful; Handbook Confidentiality Provisions and "On Duty" Restrictions Unlawful: NLRB General Counsel's Office | Practical Law

The Office of the General Counsel at the National Labor Relations Board (NLRB) recently released an advice memorandum regarding pending unfair labor practice (ULP) charges in which the NLRB's Division of Advice found several employee handbook policies unlawfully overbroad because, among other things, they restricted activity protected under Section 7 of the National Labor Relations Act (NLRA) when employees were "on duty," which included their "non-working time." The Division of Advice found a personal blogging and social networking policy predominantly unlawful because it included the overbroad "on duty" restrictions, an overbroad confidentiality provision and prohibited employees from posting links to the company's website. However, a requirement that employees disclaim that their posted opinions do not represent the opinions of the company was lawful.

Requiring Blog Post Viewpoint Disclaimer Lawful; Handbook Confidentiality Provisions and "On Duty" Restrictions Unlawful: NLRB General Counsel's Office

by Practical Law Labor & Employment
Published on 30 Sep 2014 • USA (National/Federal)
The Office of the General Counsel at the National Labor Relations Board (NLRB) recently released an advice memorandum regarding pending unfair labor practice (ULP) charges in which the NLRB's Division of Advice found several employee handbook policies unlawfully overbroad because, among other things, they restricted activity protected under Section 7 of the National Labor Relations Act (NLRA) when employees were "on duty," which included their "non-working time." The Division of Advice found a personal blogging and social networking policy predominantly unlawful because it included the overbroad "on duty" restrictions, an overbroad confidentiality provision and prohibited employees from posting links to the company's website. However, a requirement that employees disclaim that their posted opinions do not represent the opinions of the company was lawful.
On September 19, 2014, the Division of Advice at the NLRB's Office of the General Counsel (Division) released a revised advice memorandum dated August 13, 2012, in which it scrutinized 16 rules from U.S. Security Associates, Inc.'s security officer handbook that Local 32BJ of the Service Employees International Union alleged were unlawful restrictions on employees' Section 7 rights. The Division:
  • Found unlawful rules that:
    • prohibited "on duty" employees from taking various actions, some of which would infringe on opportunities to engage in Section 7 activities during "non-working time;"
    • prohibited employees from disclosing confidential or sensitive information, where the former was defined to include information from personnel files and about their assignments and the latter was undefined;
    • restricted the types of information that employees could post on blogs or social networking websites;
    • prohibited employees from wearing non-company insignia on their uniforms;
    • prohibited employees from remaining at the company's or clients' premises when off duty; and
    • required employees to raise problems through their chain of command.
  • Found lawful rules that:
    • required that employees who identify themselves as company employees in blog or social networking websites to state that posted opinions are their own and not necessarily the company's;
    • required that employees be respectful and honest; and
    • prohibited employees from using threatening, harassing or profane language or engaging in other specified acts unbecoming of a company security officer.
  • Instructed the NLRB regional office investigating 32BJ's unfair labor practice (ULP) charges to issue a complaint on the charges about the unlawful rules and dismiss the charges about the lawful rules.
Although advice memoranda do not carry the force of binding precedent from the panel (Board) heading the judicial functions of the NLRB, this memorandum sets out:
  • The types of policies and policy language about which the NLRB's General Counsel might issue ULP complaints.
  • Factors that the NLRB General Counsel's office uses when evaluating whether marginal policies are lawful.
In particular, this memorandum highlights that an employer can violate Section 8(a)(1) of the NLRA by maintaining a work rule that either:
  • Explicitly restricts protected Section 7 activity.
  • Employees would reasonably construe to prohibit Section 7 activity (such as discussing terms and conditions of employment with the union or other employees), as opposed to understanding that the rule is designed to protect the employer's legitimate business interests.
  • Was promulgated in response to union activity.
  • Has been applied to restrict the exercise of Section 7 rights.
In addition, the NLRB construes any ambiguity in a rule against the employer. Work rules that are patently ambiguous concerning their application to Section 7 are unlawful unless the rule:
  • Contains clarifying language indicating that the rule was not meant to restrict Section 7 rights.
  • Gives examples of non-Section 7 or illegal conduct that is prohibited.
(Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646 (2004).)

Advice Memorandum Analysis and Conclusions

The rules that the Division scrutinized are separated by category and set out below with the challenged phrases in each rule italicized.

On Duty Restrictions

"Security Officers will not: * * * Congregate with other Security Officers while on duty, unless so directed by a supervisor for training or official purposes."
"Violations which may result in verbal warning (1st offense), written warning (2nd offense), suspension (3rd offense), and termination (4th offense):
Congregating and/or gossiping with other Security Officers while on duty.
Watching television, listening to radios or reading unauthorized material while on duty."
The Division concluded that the term "on duty" in these rules (and others, including the insignia restrictions discussed below) is overly broad because:
  • Employees could reasonably construe "on duty" as restricting them from engaging in Section 7 activity during non-working periods in their shifts (such as rest breaks and meal periods).
  • Under Board precedent, neither "on duty," "company time," "business hours" nor "working hours" is synonymous with "working time," the time for which employers have legitimate interests in preventing distractions and delays to production (for example, see S.E. Brush Co., 306 N.L.R.B. 884 (1992)).
The Division noted that without the "on duty" language, the prohibition on "gossiping" here would ordinarily be lawful because:
  • Employees would not reasonably construe this rule to prohibit Section 7 activity.
  • The restriction does not prohibit gossiping about managers or discussing other issues that may include Section 7 activity (Hyundai America Shipping Agency, 357 N.L.R.B. slip op. 80 (Aug. 26, 2011)).

Blog and Social Networking Posts

"PERSONAL BLOGGING AND SOCIAL NETWORKING POLICY: ....Employees must make clear that the views expressed by them are their own and do not necessarily represent the views of USA. [a] If you identify yourself anywhere on a web site, blog, or text as an employee of USA, make it clear to your readers that the views you express are yours alone and that they do not necessarily reflect the views of the company. To reduce such possible confusion, we require that you put the following notice in a reasonably prominent place on your site: "The views expressed on this web site/blog are mine alone and do not necessarily reflect the views of my employer, U.S. Security Associates, Inc."
Employees must always respect confidential and proprietary information. [b] Therefore, employees may not disclose sensitive, proprietary, confidential, or financial information about USA, its customers, clients, parents, subsidiaries, or affiliates.
[c] Do not link or otherwise refer to the company web site without obtaining the advance written permission of the company.
Employees must obey the law. [d] Therefore, employees should not post any material that is obscene, defamatory, profane, discriminatory, libelous, threatening, harassing, abusive, hateful, embarrassing to another person or entity, about the company or our customers or clients or that violates company policy or the privacy rights of another. Employees are legally responsible for any content they post and can be held personally liable for such content.
[e] Employees must respect their readers and fellow employees. Employees are free to express themselves, but they must do so in a respectful manner. Therefore, employees should not post any material containing slurs, derogatory insults, obscenities, or that violates the privacy of another."
The Division concluded that:
  • Requiring employees who identify themselves as employees of the employer on blogs or social media websites to state the expressed views are their own and not necessarily the employer's is lawful because:
    • employers have legitimate interest in protecting themselves from unauthorized postings; and
    • this requirement would not unduly burden employees' exercise of Section 7 rights to discuss working conditions.
  • The confidentiality provision is unlawful. Employees could reasonably construe the provision of this rule prohibiting employees from disclosing confidential and sensitive information as prohibiting Section 7 activity because:
    • read in tandem with other rules labeling personnel records as confidential, the term "confidential" is unlawfully overbroad, as it can reasonably be construed as prohibiting the discussion of terms and conditions of employment with co-workers and the union (Double Eagle Hotel & Casino, 341 N.L.R.B. 112 (2004)); and
    • the term "sensitive" is ambiguous and could interfere with discussions about terms and conditions of employment.
  • Directing employees not to link to the employer's website without written approval from the employer is unlawful, because:
    • if employees cannot refer third parties to their employer's website, they are hindered in exercising their rights to discuss work-related concerns and complaints;
    • employers' websites are available to the public; and
    • any work rule requiring employees to get an employer's permission before engaging in Section 7 activities is unlawful.
  • Prohibiting employees from posting on blogs or social media material or information that is embarrassing to another person is unlawful, as it could be construed to bar employees from discussing complaints about work or their managers.
  • Requiring that employees express themselves on social media in a "respectful manner" was lawful, as this would not be reasonably construed as prohibiting Section 7 activity (especially when read in a broader context).
  • Prohibiting employees from posting material on social media that "violates the privacy of another" is unlawful because:
    • it could reasonably be construed by employees to prevent them from sharing information about the terms and conditions of employment; and
    • it could prohibit employees from engaging in conduct that initiates concerted activity to improve working conditions.

Disclosure of Confidential Information

"Security Officers, Supervisors and Project/Site Managers of USA shall not reveal or divulge information regarding current or former employees except as provided elsewhere in this manual or as required by management. Specifically, information contained in personnel records, official correspondence and other information ordinarily accessible only to USA employees, is considered CONFIDENTIAL in nature. Indiscriminate and/or unauthorized disclosure of this and similar information reflects gross misconduct and shall be grounds for immediate dismissal. Security Officers shall treat the official business of USA and their respective clients as confidential. Information on the business of USA and/or their respective clients shall be disseminated only to those for whom it is intended, as directed by a Supervisor, or under due process of law, and in compliance with existing USA directives. Violations of this policy shall be grounds for immediate dismissal."
The Division concluded that the confidentiality language in this rule restricting the disclosure of information about employees was unlawful because:
  • Employees could reasonably construe it as prohibiting the Section 7 activity of discussing the terms and conditions of employment with co-workers and the union.
  • Board precedent protects employees' rights to discuss information rightfully obtained from personnel files.
(See Hyundai America Shipping Agency.)
"Security Officers will not: * * * Discuss information of any kind concerning his duty assignment with anyone except his supervisor or recognized client representative."
The Division concluded that this rule was unlawful because it:
  • Limited with whom the employees can discuss duty assignments to supervisors and client representatives thereby precluding conversations with co-workers and third parties such as the union. This unlawfully prohibits Section 7 activity. (Roomstore, 357 N.L.R.B. slip op. 143 (Dec. 20, 2011).)
  • Was ambiguous as employees could reasonably construe it to preclude them from discussing assignment issues such as being overworked. This ambiguity is construed against the employer.

Insignia on Uniforms

"No insignia, emblems, buttons, or items other than those issued or authorized by USA will be worn on or with the uniform while on duty."
The Division concluded that this rule was unlawfully overbroad because:
  • An employer violates Section 8(a)(1) by maintaining a rule prohibiting employees from wearing union paraphernalia during non-working time.
  • The terms "on duty" and "working time" are not synonymous because on duty generally is understood to include an entire shift including working and non-working time.
  • Employees are generally privileged to wear union insignia during non-working time (Albertsons, Inc., 272 N.L.R.B. 865 (1984)).
  • Section 7 allows employees to wear union insignia in the workplace even during working time unless special circumstances arise, such as the insignia unreasonably interfering with the public image the employer has established as part of its business plan through employee appearance rules (P.S.K. Supermarkets, 349 N.L.R.B. 34 (2007)).
  • The employer has not shown special circumstances in which the appearance of the union insignia would reasonably interfere with its public image or the employees' ability to perform their duties. For example, other security employers permit the wearing of union pins on employee uniforms.
  • A complete ban on displaying union buttons during work time without demonstrated special circumstances is unlawfully overbroad.

Off Duty Premises Access

"Security Officers are expected to stay on their shifts until properly relieved or excused and should sign out at the end of their shifts, putting down the exact time they stopped working. Security Officers will not remain at their place of work once relieved unless requested by their supervisor or client representative...."
The Division found the challenged language unlawfully overbroad because:

Respect in the Workplace and Online; Honesty and Decorum

"Security Officers shall not act other than respectfully to any other Security Officer or to any other employee of USA or the client to which they are assigned. The use of threatening and/or abusive, demeaning, vulgar and profane language toward another, on or off duty, is prohibited, as is any threat of violence or actual violent act."
"Security Officers will not: * * * Use profane, indecent or abusive language or gestures.
"Security Officers will not: * * * Verbally or physically threaten anyone or use disrespectful, obscene or profane language to another while on duty."
The Division concluded that these rules are lawful because:
  • Employers may restrict profane and abusive language.
  • Employees would not reasonably construe these rules' requirements as prohibiting Section 7 activity.
  • The rules provide examples to avoid ambiguity. For example:
    • employees would understand acting "respectfully" in the first rule to mean that they should not engage in the behavior listed in the rule's second sentence (such as violence and profane language); and
    • the terms "indecent" and "disrespectful" in the second and third rule are clarified by the terms surrounding them.
(Palms Hotel & Casino, 344 N.L.R.B. 1363 (2005).)
"[Disciplinary Program] Violations which may result in immediate termination:
Dishonesty.
Conduct unbecoming a Security Officer."
The Division concluded that this rule is lawful because:
  • Employees would not reasonably construe it to prohibit Section 7 activity.
  • Dishonesty in this context suggests spreading information known to be false (Lafayette Park Hotel, 326 N.L.R.B. 824 (1998)).
  • A statement made with knowledge of or reckless disregard for its falsity loses the protection of the NLRA.
  • Prohibiting unprotected activity cannot be construed to restrict Section 7 activity.
  • Both contested items listed in this rule are part of larger lists of misconduct [not reproduced here] that is not protected by the NLRA.
  • In this context, employees could not conclude that the rule is intended to prohibit Section 7 activity.

Reporting Problems Only Up Chain of Command

"Each U.S. SECURITY ASSOCIATES Security Officer is responsible for and subject to these rules. Willingness to obey them is an accepted condition of employment and any breach of established rules will result in disciplinary action up to and including discharge."
"PROBLEM RESOLUTION: Any Security Officer or employee who is dissatisfied with his treatment as a Security Officer may file a complaint. The Security Officer must first follow the chain of command by reporting the matter to his (in the order indicated):
Immediate Supervisor (shift leader, site/project manager, field/patrol supervisor).
Operations Supervisor (at operating unit/branch level).
Operations Manager (at operating unit/branch level)."
"If the above management representatives fail to provide satisfactory resolution, then the Security Officer may file a formal complaint in writing to the Branch/District Manager."
"Every Security Officer should follow the Problem Resolution procedure outlined in this section whenever he has any issues related to his terms and conditions of employment. Involving the client personnel at the client site could jeopardize USA’s relationship with the client and result in the loss of our security contract."
"If a USA employee has a concern with regard to a USA environmental/ safety/ health issue or an issue of fraud/waste/abuse, the employee may direct his concern to the appropriate governmental agency responsible for resolution of such issues and/or problems but not to the client."
The Division concluded that the chain-of-command rule in these provisions could be reasonably construed to prohibit Section 7 activity and was unlawful because:
  • The rule mandates that a security officer must follow the chain of command in reporting a complaint.
  • Read together, these rules do not merely suggest, but require that an employee bring work-related complaints to management exclusively.
  • The rules impose penalties for violating the chain of command or taking complaints outside of it.
  • These rules collectively prohibit employees from communicating with third parties, including clients regarding their terms and conditions of employment.