The National Labor Relations Act (NLRA) protects the rights of employees to come together to address conditions of employment with or without a union. Those protections extend to certain work-related conversations conducted on social media platforms. Recently, the National Labor Relations Board (NLRB) released an advice memorandum addressing policies that regulate employees’ online behavior.
The Board’s July 2019 memorandum centered on the legality of the social media policy of Brighton Rehabilitation and Wellness Services, a rehab center and nursing home located near Pittsburgh. SEIU Healthcare PA (the Union) represented three separate bargaining units of employees at the facility. After NLRB field examiners submitted this case for advice, the NLRB’s Division of Advice concluded that the nursing facility had two provisions in its social media policy that violated the NLRA, and several others that did not.
The Board’s Analysis
The NLRB uses the Boeing standard when examining whether a work rule or policy is lawful. Boeing Co., 365 NLRB No. 154 (2017). Applying this standard, the Board will first look at the nature and extent of the rule’s potential impact and interference on workers’ rights. Next, the Board will look at the legitimate business justification for the rule to determine if it outweighs any potential inference with employee rights.
In applying this test, the NLRB will categorize workplace rules into three distinct categories. The first category includes rules the Board considers lawful without further scrutiny because they do not interfere with worker rights or are justified by a strong enough business reason to outweigh any tendency to interfere with such rights. The second category includes rules that require individualized scrutiny to determine the extent of potential inference with protected rights. The third category includes rules that the Board always considers unlawful because they prohibit or interfere with workers’ rights and have no overriding business justification.
Applying the Boeing standard to this company’s social media policy, the Board concluded that two provisions of the policy fell within the second category above and, upon further review, were unlawful. First, the NLRB concluded that text under the subheading, “Be honest and accurate,” contained an unlawful work rule. The rule stated:
“Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that are false about Friendship Ridge, fellow employees, owners, residents, suppliers, people working on behalf of Friendship Ridge.”
The Board reasoned that requiring complete accuracy would have a chilling effect of keeping employees from engaging in discussions regarding the terms and conditions of employment out of fear that their statements could be challenged as inaccurate or incomplete. The added burden of having to verify the accuracy of statements could keep employees from speaking up in the first place.
The Board also concluded that certain restrictions under the subheading, “Post only appropriate and respectful content,” were unlawful confidentiality rules. The language at issue was:
“Maintain the confidentiality of Friendship Ridge private or confidential information. Do not post internal reports, policies, procedures or other internal business related confidential communications.”
The Board reasoned that employees might read this as prohibiting them from disclosing any information regarding their terms and conditions of employment. The Board recognized an employer’s business need to keep certain information confidential but found this language overbroad.
The Board examined the remaining provisions using the same standard and concluded that the rest of the social media policy was lawful as the language did not unreasonably adversely affect or interfere with workers’ protected rights. Among the lawful rules were civility rules promoting a respectful work environment to ensure a workplace free from harassment, violence and unnecessary conflict. The rules that passed muster under the Boeing standard were:
- “Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, residents, owners, suppliers, people who work on behalf of Friendship Ridge or [its] legitimate business interests may result in disciplinary action up to and including termination in accordance with [the] Progressive Discipline Program.”
- “Always be fair and courteous to fellow employees, residents, owners, suppliers or people who work on behalf of Friendship Ridge . . . Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage residents, other employees, owners or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”
- “Do not create a link from your blog, website or other social networking site to a website without identifying yourself as a Friendship Ridge employee and remember that being a Friendship Ridge employee means that you are taking on the responsibility of presenting yourself in a professional manner. Express only your personal opinions.”
- “Never represent yourself as a spokesperson for Friendship Ridge. If Friendship Ridge is a subject of the content you are creating, be clear and open about the fact that you are an employee and make it clear that your views do not represent those of Friendship Ridge, fellow employees, owners, residents, suppliers or people working on behalf of Friendship Ridge. If you do publish a blog or post online information related to the work you do or subjects associated with Friendship Ridge, make it clear that you are not speaking on behalf of Friendship Ridge. You must include a disclaimer such as ‘The postings on this site are my own and do not necessarily reflect the views of Friendship Ridge.’”
Considerations for Employers
The Board’s memorandum serves as helpful current guidance to companies striving to lawfully regulate their employees’ online conversations. It also serves as a reminder of liability issues that can arise from facially neutral workplace rules. Because the NLRB’s position on what is permissible and what is not has evolved over time and is likely to continue to do so, we recommend that employers consult with counsel regarding the most recent authority on this topic prior to implementing new or revised workplace policies covering social media.