Last week, the NLRB held in a 2-1 decision that an employer’s rules restricting certain types of employee communications on social media were lawful under the NLRA. However, the Board panel was sharply divided between its Republican majority and Lauren McFerran, its sole Democratic member. In a strongly worded dissent, Member McFerran took issue with the ruling, signaling that this pro-employer stance may be on the NLRB’s chopping block once a Democratic majority is installed under the Biden Administration.
For many years, the direction of the National Labor Relations Board has sharply oscillated depending on which political party has comprised the majority of its Members, and the divide between Republican and Democratic Board Members has been especially sharp in cases involving employer rules and policies. Under the Obama Administration, the Board found that many common workplace policies were unlawful under the National Labor Relations Act because employees might “reasonably construe” them to prohibit protected concerted activity under Section 7 of the NLRA.
For example, the Obama Board held that policies requiring employees not to engage in conduct that impedes “harmonious interactions or relationships” or prohibiting “abusive or threatening language to anyone on company premises” violated the Act. But when the make-up of the Board shifted following President Trump’s inauguration, the Board overruled the “reasonably construe” standard and adopted a standard aimed at striking a balance between (1) the nature and extent of the potential impact of the policy on employee Section 7 rights and (2) the employer’s legitimate justifications associated with the rule.
Last week, the Board issued another employer-friendly decision that reinforced its current standard and provided clarity that a number of provisions common to social media policies comport with the Act. However, the decision was reached over the strong dissent of the Board’s sole Democratic Member, and her dissent is a harbinger for expected change in Board decisions and policies following President-Elect Biden’s swearing-in.
The Board’s Decision
On January 4, 2021, in Medic Ambulance Service, Inc., 370 NLRB No. 65, the NLRB found that provisions in an employer’s social media policy that restricted employee communications on social media were lawful under the Act. The provisions at issue prohibited employees from engaging in “inappropriate communications,” disclosing confidential information, using the employer’s name to denigrate or disparage causes or people, and posting photos of coworkers. The Medic Ambulance decision was issued by NLRB Chairman John Ring and Member Marvin Kaplan, both appointees of President Donald Trump, with Member Lauren McFerran, the lone Democratic-appointed Member presently on the NLRB, dissenting.
The Board’s ruling adopted an NLRB administrative law judge’s findings that the employer violated the NLRA by maintaining rules that prohibited conducting personal business on company time or property and soliciting or distributing literature during working hours, but reversed the ALJ’s findings that the employer’s social media policy violated the Act. The Board also reversed the ALJ’s finding that the employer unlawfully maintained rules prohibiting the sharing of employee compensation information and the use of social media to disparage the employer or others.
In reaching its decision, the Board majority pointed to the Board’s 2017 decision in Boeing Co., 365 NLRB No. 154 (2017), which rewrote the framework for assessing the legality of employer rules. In that decision, the Trump era Board held that when evaluating a facially neutral rule or policy that would potentially interfere with the exercise of NLRA rights, the Board will balance the employer’s legitimate business justifications against the extent to which the rule, viewed from the perspective of reasonable employees, interferes with employee rights under the Act. Using that framework, the Board majority found that the six challenged rules were lawful:
- Regarding the rule prohibiting “inappropriate communications,” the Board majority found that an objectively reasonable employee would not read that prohibition in isolation, but would instead consider it in the context of the guidelines that followed, all of which were lawful. As a result, the prohibition did not violate the Act.
- Regarding the rule prohibiting disclosure of confidential or proprietary information about the company or coworkers, the Board majority found that an objectively reasonable employee would not interpret the rule as potentially interfering with the exercise of NLRA-protected rights. The majority reasoned that the rule referenced copyrighted or trademarked information and trade secrets in the very next sentence, and it did not specifically reference employees’ contact information, wages, or other terms and conditions of employment.
- Regarding the rule prohibiting employees from using the company’s name or logo to denigrate or otherwise comment on any opinion, cause, or person, the Board majority found that reading that together with the employer’s guideline directing employees to make it clear that their views expressed in social media were theirs alone, the prohibition was lawful. The majority reasoned that an objectively reasonable employee would understand the prohibition to be aimed at preventing employees from speaking on behalf of the company, rather than prohibiting them from referring to the company by name in a post critical of the company’s terms and conditions of employment.
- Regarding the rules prohibiting employees from posting photos of coworkers without their consent and from posting pictures of company-owned equipment or other employees without obtaining written permission, the Board majority reasoned that read in their totality, the rules strongly implied that their purpose was to protect the company’s confidentiality interests and employees’ privacy interests. As a result, an objectively reasonable employee would not read the rules as prohibiting NLRA-protected activity.
- Regarding the rule prohibiting employees from giving out information on current or former employee compensation, the Board majority reasoned that it was apparent the rule was intended to apply only when someone telephoned the company seeking information about a particular employee. As a result, objectively reasonable employees would understand the policy in that light, not as restricting their right to discuss their wages with each other or to disclose them to a union.
- Regarding the rule prohibiting employees from using social media to disparage the company, its associates, customers, vendors, business practices, or patients, the Board majority found it was lawful because the employer had a legitimate justification in prohibiting its employees from disparaging it or its products to its customers and the public, and this justification outweighed the rule’s potential to interfere with employees’ exercise of NLRA-protected rights. In reaching this conclusion, the Board majority found it notable that the rule did not expressly restrict employee communications with other employees.
In her strongly worded dissent, Member McFerran said the Boeing decision and its progeny represent “a dramatic pivot” by the Board, and that the Board now “routinely allows employers to adopt broad work rules that threaten labor law rights.” In her view, all six of the work rules upheld by the Board majority should have been found unlawful.
Member McFerran wrote that the majority’s decision illustrated how “eager” the Board majority is to uphold employer rules, and how little weight it gives to the rights protected by the NLRA. She also clearly conveyed her belief that the Boeing decision and the rulings that have built on it were wrongly decided.
Takeaway for Employers
Although the Medic Ambulance decision is certainly a positive for employers, they may not want to rush to modify their workplace rules and policies in response. As it currently stands, there are three Republican Members of the NLRB (Ring, Kaplan, and Emanuel), one Democratic Member (McFerran), and one open seat. Employers can expect the open seat to be filled with a Democrat following Biden’s swearing-in as President, and for Emanuel’s seat to be filled with another Democrat following the expiration of his term in August 2021. Once the Board Members flip to a Democratic majority, it would not be at all surprising for this decision, Boeing, and its progeny to be on the NLRB’s chopping block, and for the NLRB to return to the more restrictive legal framework for assessing the legality of employer rules and policies that was in place during the Obama Administration.
Indeed, employers can reasonably expect a wholesale change in approach at the NLRB, possibly beginning as soon as late 2021. In addition to an anticipated overruling of Boeingand its progeny, employers can expect a new Democratic Board majority to take on issues such as joint employment, disciplinary standards, deferral, access to employer email systems, confidentiality in investigations, dues checkoff, “micro unit” bargaining, successors, withdrawal of recognition, and access to property, among many others. In short, employers should plan for a much more union-friendly and activist NLRB in the coming years, and a Board that will likely examine and revisit many of the Trump era decisions that have issued over the last four years.
Employers should carefully measure and adapt their policies to account for another swing in the law, as well as the risks they may be taking, In doing so, our team of talented professionals is here to assist you.