NLRB Administrative Law Judge's Ruling on Employee Social Media Postings and Employer Policies A Sign of Things to Come

As previously reported here earlier this year, the National Labor Relations Board ("NLRB") issued a complaint against a Chicago car dealership alleging the dealership violated Section 7 of the National Labor Relations Act ("NLRA") when it terminated an employee for posting on his Facebook page photographs and comments criticizing the dealership for serving only hot dogs and water to customers at a dealership sales event promoting a new model, and for posting photos from an accident that occurred at an adjacent dealership. On Wednesday, September 28, 2011, an Administrative Law Judge ("ALJ") ruled that the dealership did not wrongfully terminate the employee for the Facebook postings.  However, the ALJ found that the employer had several overly broad handbook policies that unlawfully restricted employees' Section 7 rights. The ALJ ordered the employer to post a notice informing employees of their rights to engage in protected activity.  

Section 7 of the NLRA protects employees' conversations and activity related to wages, hours, and working conditions. The ALJ found that while the Facebook postings involving the sales event and the subsequent exchange of complaints with other salespersons was protected activity, the postings involving the accident were not protected. Further, the ALJ found that the salesman was terminated for the accident postings, and therefore was not protected under the NLRA.

On the handbook policies, the NLRB's Complaint alleged that four policies were unlawful:

(a) Bad Attitude: Employees should display a positive attitude toward their job. A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers.
(b) Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
(c) Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to "ask a few questions." If you are asked questions about the Dealership or its current or former employees, you are to refer that individual(s) to your supervisor. A decision will then be made as to whether that individual may conduct any interview and they will be introduced to you by your supervisor with a reason for the questioning. Similarly, if you are aware that an unauthorized interview is occurring at the Dealership, immediately notify the General Manager or the President.
(d) Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.

The ALJ found that paragraphs (c) and (d) clearly "would be understood to restrict and limit employees in the exercise of their Section 7 rights," but found paragraphs (a) and (b) were not so obvious. Therefore, the test, among other factors, was whether the employees would reasonably construe the policies to restrict their Section 7 rights.

On paragraph (a), the ALJ dismissed the allegation, finding that the "one sentence prohibition would reasonably be read to protect the relationship between the []dealer and its customers, rather than restrict the employees' Section 7 rights." However, as to paragraph (b), the ALJ found that employees would reasonably believe that their protected rights were prohibited by the rule, focusing in on the subjectivity of the term "disrespectful."

It is important to note that this is an ALJ decision, as opposed to a Board decision that would establish binding Board law. The ALJ decision could be appealed to the Board for final review. However, the case illustrates a trend toward heightened investigation and enforcement by the NLRB of employee handbook policies. The case also represents the emergence of issues arising where laws, such as Section 7 of the NLRA, which have been in existence for decades, are applied to the workplace regulation of employees' social media activity, and then application of those laws to enforcement of employer policies, which may also have been in existence prior to the widespread use of Twitter, Facebook, and other social media.

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