by Shari Lane
You have read in this newsletter and elsewhere that the National Labor Relations Board has been cracking down on company policies that restrict what employees can say about their employers. New decisions continue to narrow the scope of what restrictions are allowed and those that may be considered a violation of the National Labor Relations Act. The NLRA protects “concerted activity,” which occurs when an employee discusses the terms and conditions of the workplace with other employees, with the goal of improving those terms and conditions. Sounds simple, right? But as you know, omnipresent social media has changed the landscape dramatically. We’re no longer simply talking about the right to form a union—the proscriptions on employer policies and actions are much broader.
Employers and employment lawyers have been focusing primarily on technology and computer use policies, however two recent cases suggest that a review of non-disparagement and confidentiality policies is also in order.
In Quicken Loans, a case in Washington State from June of this year, the NLRB tossed out the company’s Confidentiality Policy, which prohibited disclosure of personnel information, including salary and “information such as home phone numbers, cell phone numbers, addresses, and email addresses.” This seems pretty straightforward, but the Board, rejecting the company’s arguments that the policy was designed to protect employee privacy, decided that the policy was impermissible, in all likelihood because it could prevent employees from sharing contact information with union organizers. In addition, the Board rested on established precedent that a prohibition on discussing wages would have a “chilling” effect on any concerted activity regarding increasing wages.
The NLRB also found Quicken Loans’ Non-Disparagement Policy violated the NLRA. That policy stated:
“The Company has internal procedures for complaints and disputes to be addressed and resolved. You agree that you will not… publicly criticize, ridicule, disparage or defame the Company or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image (including, but not limited to… websites, blogs, postings to the internet, or emails…).”
The problem with the non-disparagement policy, according to the NLRB, was that “[w]ithin certain limits, employees are allowed to criticize their employer and its products as part of their [NLRA] rights.” Historically, an employer could not prohibit its employees from criticizing the company (or an individual supervisor), but could prohibit employees from criticizing the products or services the company provided. Quicken Loans and other recent cases seem to be expanding the scope of what an employee can say, and narrowing the scope of employer-imposed limits.
Knauz BMW, a highly publicized case in 2012, illustrates another facet of this issue. The company’s Courtesy Policy read:
“Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”
Employee Robert Becker violated this policy twice, but only one of the violations was potentially protected activity.
This was the first violation: An employee of Knauz Land Rover allowed his son to drive one of the cars, and he promptly drove it over a customer’s foot and into a nearby pond. Becker took pictures of the car in the pond, and posted them on Facebook with the caption, “This is your car: This is your car on drugs.” Although some of Becker’s co-workers commented on the post (“concerted activity”), there was no implication regarding the terms and conditions of employment—the accident took place at a neighboring dealership, and had no effect on Becker, therefore this was not protected activity.
The second violation consisted of ridiculing the company for providing hotdogs at a sales event—also posted on Facebook, also the subject of comments by co-workers (“concerted activity”). Why would anyone ever consider this a “protected” communication? Because the basic complaint was that hotdogs are cheap and common, thus the company’s decision to serve hotdogs could affect Becker’s sales and therefore his commissions. Hence, his complaint was really a complaint about the terms and conditions of employment.
So what can you do?
As of this writing, it appears you may still prohibit profanity, discrimination, and threats, at least as to communications that implicate the company. For example, an employee is legally permitted to Tweet, “My boss is the meanest man alive,” but if you’ve got a policy prohibiting the use of profanity when making public statements about the company, he could be fired for saying, “My boss is the meanest &[email protected]# man alive!” Also, keep in mind there is a legal distinction between defamation (a false statement of fact that damages the reputation of the person or company) and disparagement (criticism, insults—generally an opinion rather than a statement of fact). It appears you may legitimately prohibit defamation, but must permit disparagement.
In addition, Quicken Loans did not discuss whether a clarification of the confidentiality policy would pass muster, but one suggestion might be to clearly distinguish permissible and impermissible disclosures (i.e. “To protect employee privacy, disclosure of home addresses, telephone numbers, email addresses, etc. is strictly prohibited, except in the context of union activity and/or discussions between employees for the purpose of improving working conditions.”).
Ultimately, it is difficult to predict this evolving area of law. In a mastery of understatement, the Administrative Law Judge in Quicken Loans stated: “The line between lawful and unlawful restrictions is very thin and often difficult to discern.” Indeed.