Employer's Prohibition on Social Media Use During Company Time Violates NLRA

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A provision in an employer's social media policy that prohibited employees from using social media on company time impermissibly chilled an employee's National Labor Relations Act rights, a National Labor Relations Board administrative law judge ruled Sept. 20 (EchoStar Technologies LLC, N.L.R.B. A.L.J., No. 27-CA-066726, 9/20/12).

The ALJ also held that EchoStar Technologies LLC, which sells satellite and cable boxes and satellite services, could not bar employees from making “disparaging” comments on social media platforms. His ruling cited, in part, the board's recent holding in Costco Wholesale Corp., No. 34-CA-012421 (N.L.R.B. Sept. 7, 2012), that an employer could not ban damaging online statements in its employee handbook (11 PVLR 1439, 9/24/12).

EchoStar's rules regarding contact with the media, communication with government agencies, disclosure of company investigations, and an insubordination rule also were found to violate the NLRA.

EchoStar Employee Handbook.

In May 2011, EchoStar gave its employees an updated employee handbook that had a social media policy. EchoStar's handbook said the company “regards Social Media-blogs, forums, wikis, social and professional networks, virtual worlds, user-generated video or audio--as a form of communication and relationship among individuals.” The company also said it recognized “the increasing prevalence of Social Media in everyone's daily lives.”

Against that backdrop, one rule in the social media policy provided that employees state that “[t]he postings on this site are my own and do not represent EchoStar's positions, strategies or opinions” whenever a social media comment directly or indirectly related to the company.

An employee challenged two social media rules: a prohibition on “disparaging or defamatory comments about EchoStar, its employees, officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services” and a ban on participating “in these activities with EchoStar resources and/or on Company time.”

The charging party argued that the rules violated Section 8(a)(1) of the NLRA, which bans employer interference with an employee's Section 7 rights. Section 7 of the NLRA protects both unionization activities and the right of nonunion employees “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The NLRB general counsel's office later filed a complaint in the case, supporting the employee. Lafe Solomon, acting general counsel for the NLRB, released memoranda on employer social media cases and policies on Aug. 18, 2011, Jan. 24, and May 30 (10 PVLR 1193, 8/22/11; 11 PVLR 188, 1/30/12; 11 PVLR 888, 6/4/12).

Rules Chill Protected Activities.

The ALJ said the case centered around whether a reasonable employee would view EchoStar's social media policy as chilling Section 7 activities.

The test, he added, is whether an employee's Section 7 rights “suffered a reduction or inhibition,” and that the determination considers a reasonable employee's reaction to the rules, not whether the employees actually involved felt threatened.

The ALJ struck down the rule banning “disparaging comments” on social media sites, finding that it was similar to a case in which the NLRB did not allow a rule prohibiting “derogatory” comments about the employer.

In that case, Southern Maryland Hospital Center, 293 N.L.R.B. 1209 (1989), the board explained that such a ban was problematic because “an assertion that an employer overworks or underpays its employees, which would constitute the most elementary kind of union propaganda, could fairly be regarded as 'derogatory' toward the employer.”

The ALJ in this case concluded that “ 'disparaging,' like the term 'derogatory,' … goes beyond proper employer prohibition and intrudes on” employees' Section 7 activities.

The ruling did not appear to provide the ALJ's analysis of why the prohibition against the use of social media on company time violated the NLRA, but it made clear that the rule also needed to be removed from the employer's handbook.

The general counsel's office argued that “the 'incredible mobility' of smart phones allow employees to engage in social media activities without resorting to the use of the employer's computers or employer internet connections.” It added that the use of “company time” in employer rules had been found problematic in prior cases because it does not let employees know that protected activities may occur “on breaks, lunch, and before and after work.”

EchoStar responded that its ban merely was meant to prevent employees from personal activities during work hours. The company said that there is a “pervasive use of social media for personal matters unrelated to Section 7 during working time,” thereby making its prohibition reasonable.

The judge responded that the challenged rule be removed.

Isabel C. Saveland and Michelle Devitt, of the NLRB, represented the general counsel. George Basara, of Buchanan Ingersoll and Rooney, in Pittsburgh, represented EchoStar.

Full text of the opinion is available at http://op.bna.com/pl.nsf/r?Open=kjon-8yktbb.

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