Guest Blog: The Long Arm of the NLRA – Time to Update Your Code of Conduct and Social Media Policies?

by Gulfshore Insurance

By Damian Taylor – Coleman, Hazzard & Taylor, P.A.

The National Labor Relations Act (“NLRA”), codified at 29 U.S.C. §§ 151-169, is a federal law that was enacted in 1935. It applies to most private employers, but tends to fall below the radar of most non-unionized employers. Its protections are undoubtedly invoked primarily by employers, employees, and labor unions who are dealing directly with a unionized workforce, or who are attempting to encourage or discourage workplace unionization. However, there are provisions of the NLRA that apply equally to non-unionized employers who seemingly face no threat of unionization….

One of those provisions protects the rights of employees not only “to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing,” but also “to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157 (Emphasis added). Activity is “concerted” under the NLRA when an employee acts with or on the authority of other employees and not solely by and on behalf of the employee himself, although individual activity is concerted when it occurs for the purpose of initiating or inducing group action or where it is an outgrowth of group action. Concerted activity is protected where it implicates terms and conditions of employment. Thus, the NLRA protects the rights of employees to discuss wages and benefits and other terms and conditions of employment with co-workers and to take action with one or more co-workers to improve working conditions by, among other means, raising work-related complaints directly with the employer.

Increasingly, the National Labor Relations Board (“NLRB”), which is empowered to make rules to carry out the NLRA, has been cracking down on employers for disciplining employees that complain about their employers, management, or coworkers in social media. The NLRB, through its regional directors, general counsel’s office, and administrative law judges, has found such discipline in various contexts to interfere with the rights of employees under the NLRA to engage in “concerted activity for mutual aid or protection.” Previously common employer handbook policies prohibiting disrespectful behavior, insubordination, and employee responses to third party inquiries about the employer or other employees have similarly been characterized as unlawful because they would supposedly tend to chill protected concerted activity. Several memoranda, highlighting the facts of these cases, were published by the NLRB on August 18, 2011, January 24, 2012, and May 30, 2012 and are available on the NLRB’s website.

Examples include cases in which employees were fired after they posted comments on Facebook that used profanity and sarcasm in referencing criticism from a co-worker (which led to that co-worker’s complaint of cyber-bullying), and which referred to a supervisor as a “scumbag.” Although concerted activity can lose protected status if it is “opprobrious, disloyal, reckless, or maliciously untrue,” the NLRB interprets those terms very narrowly. Factors affecting loss of protected status include:

(a) the place of the discussion;
(b) the subject matter of the discussion;
(c) the nature of the employee’s outburst; and
(d) whether the employee’s conduct was prompted by the employer’s unfair labor practice.

In the above mentioned examples, the NLRB emphasized that the employee’s conduct: occurred outside of the workplace and outside working hours and therefore did not interrupt work flow; occurred in the scope of a discussion that was not directed at management and that included the participation or support of co-workers; and was not accompanied by verbal or physical threats.

Examples of employer policies found to be overly broad under the NLRA include social media and conduct policies that prohibited employees from:

(a) posting pictures of themselves in any media which depicted the company in any way, including a company uniform, corporate logo, etc.;
(b) making disparaging remarks when discussing the company, supervisors, or coworkers;
(c) engaging in inappropriate or generally offensive conduct or language, and rude or discourteous behavior to a client or coworker; and
(d) disclosing confidential information regarding their workplace.

Factors considered by the NLRB in evaluating the legality of social media and conduct policies under the NLRA include whether the policy: explicitly prohibits NLRA protected activity; is used to discipline employees for engaging in protected activity; was implemented in response to protected activity; or would reasonably tend to “chill” protected activity or could reasonably be interpreted to prohibit protected activity; and contains limiting language to inform employees that protected activity is excluded from the policy. Those policies that received a passing grade from the NLRB tended to include, at most, isolated examples of arguably protected conduct, i.e. disparaging comments about co-workers, in longer lists of clearly unprotected activity, such as unlawful discrimination, hostile work environment harassment, and threats of physical harm. In such cases, the NLRB was able to find from the broader context of the policies that they could not reasonably be interpreted to prohibit protected activity.

The NLRB has recognized this as an “emerging” area of the law which continues to be a “hot topic.” Employers may be well advised to take note and consider whether they need to update their policies accordingly.

Damian Taylor is a partner in the Naples law firm of Coleman, Hazzard & Taylor, P.A., and the State Government Affairs Director for HR Florida.