NLRB Work Rules and Social Media Policies Continue to Perplex

The NLRB may be getting #SocialMedia, but confusion concerning employer work rules and social media policies became obvious yet again in Professional Electrical Contractors of Connecticut (June 4, 2014).  In this decision, ALJ Raymond Green wrote that “a legitimate conflict of principles . . . will require Board and Appellate Court clarification” with respect to these rules, especially those concerning recording, taping and photographing while on the job.

The ALJ ruled in the following ways with respect to handbook policies which forbade employees from:

  • Disclosing the location and telephone number of employee customer assignments to outsiders
    • The ALJ found such a prohibition as to location is too broad as it could “inhibit” the ability of a union to meet and communicate with employees when on assignment,  but that the restriction as to customer’s phone numbers is permissible as the employees already have their own work provided or personal cell-phones where they could be reached by the union or fellow employees.
  • Disclosing customer information to outsiders, including other customers or third parties and members of the employee’s family
    • The ALJ upheld this rule because it would not reasonably chill employees from talking to one another or the union about terms and conditions of employment.
  • Boisterous or disruptive activity in the workplace
    • The ALJ relied on prior Board decisions to strike down the rule because, as written, it would be “sufficiently imprecise” by encompassing any disagreement or conflict among workers protected by Section 7.
  • Initiating or participating in distribution of chain letters, sending communications or posting information, on or off duty, or using personal computers in any manner that may adversely affect company business interests or reputation
    • The ALJ found that since the rule so broad as to include personal computers, it overreached and thus was impermissible.
  • Forbidding photography, taping and recording any person, document, conversations, communication or activity that in any way involves the Company, its associates or customers or any other individual with which it is doing or intending to do business with
    • Despite the employer’s best intentions to protect customer privacy and confidentiality, the effect on the employees was considered the determinative factor.  Thus, the ALJ struck down the rule, except to the extent that the customer explicitly prohibited photographing and filming on the customer’s premises.  However, this ruling is in tension with a recent ALJ decision in Whole Foods Market (Oct. 30, 2013) which found such a rule permissible where the employer forbade recording of conversions or the use of such devices.

As demonstrated particularly by the ALJ’s disagreement with another ALJ concerning photographing and recording at the workplace, the NLRB’s policy concerning work rules and social media remains in a state of disarray.  Further, if the ALJ’s ruling in this case stands, then the logical extension is that employers in similar circumstances will have to verify whether each customer or vendor with which they conduct business permits or disallows photographing and taping on their premises.

One can hope that eventually, as this and other cases wind their way to the Board and the courts, that unreasonable burdens like this will be replaced by more reasonable and practical policies, and that consistency will be brought to NLRB administrative law judge rulings and regional director complaints.  In the meantime, the General Counsel has stated that he will focus on rules explicitly limiting employee rights to discuss wages and other terms and conditions of employment.  Again, as these specific types of straight-forward cases become the target of General Counsel’s enforcement efforts, one can hope that the agency will move away from those unfair labor practice allegations which seem to be based mostly on theoretical, highly speculative allegations about how some employee might read some otherwise common sense rule.

Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.