National Labor Relations Board Update
As the Obama Administration increasingly focuses its policy-making efforts at the administrative level, one agency that continues to be particularly active is the National Labor Relations Board (NLRB), which is charged with preventing unfair labor practices. In recent years, a growing number of NLRB matters have concerned employer policies regarding employees' internet and social media use. As a general principle, the NLRB has struck down the policies (and terminations relating to policy violations) where it determined that the employer was restricting employee rights to organize and communicate regarding working conditions.
In an effort to better assist The Vision Council members, The Vision Council has developed a Model Social Media Policy designed to withstand NLRB scrutiny. Below are some recent NLRB developments that we are watching closely.
Kroger Online Policy Overturned
In a recent decision regarding Kroger Co., the NLRB ruled that the national grocery store chain's online communications policy was unlawful. In a new issue before the NLRB, the Administrative Law Judge focused on a Kroger requirement that any Kroger employee making public statements regarding company issues utilize a specific disclaimer. The Judge found this provision to be unduly burdensome and likely to chill protected employee speech regarding workplace conditions. The NLRB also struck down as overly-broad provisions of Kroger's online policy regarding use of company intellectual property assets, disclosure of confidential information, and appropriate online behavior. The Kroger case, like others before it, illustrates the risk of having online policies with blanket prohibitions on certain types of communications.
Work-Only Email Policies in Jeopardy?
In addition to the recent string of cases targeting social media policies, the NLRB is also considering overturning its 2007 ruling upholding employer policies that company email is only to be used for business purposes. Specifically, the NLRB will decide whether employees have a protected right to use company email to engage in concerted action regarding working conditions, including organizing unions. Arguing for a change in precedent, the NLRB general counsel has asserted that email communication has become akin to discussions among employees at the water cooler or in the lunch room, and is therefore a protected means of collective discussions. If the NLRB follows the general counsel's recommendation, employer policies that broadly prohibit using company email for personal use will likely be invalidated.