In Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014), an NLRB Administrative Law Judge (ALJ) found a social media rule concerning its wholly owned subsidiary, Bubba Gump Shrimp Co. Restaurants, Inc., to not violate the NLRA. The General Counsel had alleged that the following policy infringed on employee’s rights because, purportedly, it would tend to prohibit employees from discussing terms and conditions of employment with coworkers or third parties:
While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.
The ALJ disagreed, and sensibly interpreted the policy, as a whole, to mean that morale problems can be avoided by being civil to one another, rather than outright forbidding speech on job-related issues. In other words, it is not the job-related subject matter which is being regulated so much as the manner in which it is being discussed and debated. In ultimately dismissing the complaint in its entirety, the ALJ noted it would be more punitive than remedial to find a violation of an older version of the handbook which had an arguably-ambiguous copyright infringement policy, since it was no longer issued to employees.
This decision underscores the fact that even though the General Counsel may be the gatekeeper for prosecuting social media and work rule cases, ALJs and the Board may very well, at the end of the day, find these policies consistent with the Act.
Special thanks to Jon L. Dueltgen, Labor Associate in Proskauer’s New York office, for his assistance in preparing this post.