Recently, the National Labor Relations Board (the "NLRB") issued two separate decisions—Shamrock Foods Company, 369 NLRB No. 140 (July 29, 2020) and Bemis Company, 370 NLRB No. 7 (Aug. 7, 2020)—which analyzed whether company policies limiting what their employees could post about the company on social media violated the National Labor Relations Act (the "NLRA"). The NLRB applied the new "Boeing Test" to determine whether the companies' social media policies were lawful. Ultimately, the NLRB held in both decisions that the policies did not violate the NLRA because the policies were intended to protect the company's public image and because the policies did not interfere with the employees' ability to use social media to discuss workplace issues.

Background

Section 7 of the NLRA guarantees employees the "right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. § 157 (emphasis added). The NLRB has previously established that using social media to address and discuss work related issues constitutes "concerted activities" that are protected under Section 7. Indeed, the NLRB's own website clarifies that: "[employees] have the right to address work-related issues and share information about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media."1

As a result, employers must be cautious when enacting social media policies to ensure that they do not infringe upon their employees' rights under the NLRA.

The "Boeing Test"

The NLRB recently established the "Boeing Test" in its seminal ruling The Boeing Company, 365 NLRB No. 154 (2017). The Boeing Test is a two-step process for analyzing whether an employer's facially neutral workplace policy interferes with its employees' protected activity under Section 7 of the NLRA. The first step is determining whether the workplace rule or policy at issue reasonably interferes with an employee's right to participate in Section 7 activity. If the policy does interfere with an employee's ability to engage in Section 7 activity, then the second step is determining the employer's legitimate justifications for the rule, and then balancing those justifications against the nature and extent of the interference with Section 7 activity to determine whether the workplace rule is lawful.

The Boeing Test provides for more discretion in analyzing facially neutral workplace rules and has resulted in more employer-friendly rulings from the NLRB. But because it is a relatively new test, there has not been much guidance on how the Boeing Test would apply when analyzing companies' social media policies. However, the NLRB issued two opinions over this past summer that directly addressed this matter: Shamrock Foods Company and Bemis Company

Shamrock Foods Company, 369 NLRB No. 140 (July 29, 2020)

In Shamrock Foods Company, the issue was whether a company rule that barred employees from inserting links to the company's website on any personal blog post violated the NLRA. Specifically, the company's social media policy stated:

Shamrock recognizes that blogs, other types of selfpublished online journals, and collaborative Web-based discussion forums can be effective tools for sharing ideas and exchanging information of all kinds. Shamrock is concerned with ensuring that use of such communications serves Shamrock's need to maintain brand identity, integrity, and reputation while minimizing actual or potential legal risks. The following rules and guidelines apply to blogging, whether blogging is done for Shamrock on company time, on a personal Web site during non-work time, or outside the workplace. . . . Shamrock discourages associates from linking to Shamrock's external or internal Web site from personal blogs. (Emphasis added).

The union representing Shamrock's employees sued, and argued that the social media policy was unlawful under the Boeing Test. The Administrative Law Judge ("ALJ") hearing the case agreed. The ALJ found that the policy failed the first step of the Boeing Test because it interfered with protected Section 7 activities by discouraging employees "from using the common and most efficient method of identifying and directing coworkers and others to the Company's website to obtain further information and communicate directly with the Company in support of the employees' work-related concerns or disputes." Moreover, the ALJ found that the policy failed the second step of the Boeing Test because the employer's justification for prohibiting employees from including links to the company's website in their personal blogs, which was to ensure the company was not associated with racist or offensive posts made by its employees, was an insufficient justification to uphold the policy.

On appeal, the NLRB reversed the ALJ's ruling. The NLRB focused on the language of the entire social media policy, rather than just the provision prohibiting employees from posting links to the company's website on any personal blog post. In particular, the NLRB emphasized the introductory language of the social media policy that clarified that the purpose of the company's social media policy was to protect its brand integrity and corporate image from potentially offensive blog posts. Because of this stated goal, the NLRB held that a reasonable employee would not find that the social media policy interfered with any protected Section 7 activities because the policy was "simply discouraging employees from giving the impression that the employee was speaking on behalf of the [employer] or making statements that might be interpreted as coming from or endorsed by the [employer]." Therefore, the NLRB ruled that the policy was lawful under the first step of the Boeing Test.

Bemis Company, 370 NLRB No. 7 (Aug. 7, 2020)

In Bemis Company, the issue was whether a company's social media policy was lawful under the NLRA where the policy required its employees to maintain a "respectful and professional manner" when posting about the company on social media, as well as prohibited its employees from using social media to disclose proprietary information, harass their co-workers, or create an "intimidating, offensive, or hostile work environment."

Specifically, the company's social media policy stated:

Employees are expected to be respectful and professional when using social media tools. With the rise of websites like Facebook, MySpace, and LinkedIn, the way in which employees can communicate internally and externally continues to evolve. We expect our employees to exercise judgment in their communications relating to Bemis so as to effectively safeguard the reputation and interests of Bemis.

Employees should:

  • Communicate in a respectful and professional manner;
  • Avoid disclosing proprietary information; and

Each employee is responsible for respecting the rights of their co-workers and conducting themselves in a manner that does not harass, disrupt, or interfere with another person's work performance or in a manner that does not create an intimidating, offensive, or hostile work environment.

The union representing the employees challenged the social media policy as interfering with the employees' ability to engage in Section 7 activities under the NLRA. The ALJ hearing the case agreed and found that the policy failed the first step of the Boeing Test because it restricted the employees' ability to privately communicate with each other regarding workplace conditions. Moreover, the ALJ held that the policy failed the second step of the Boeing Test because the justification for the policy was protecting the company's brand, which the ALJ held was insufficient because the policy could have been drafted more narrowly.

However, on appeal, the NLRB reversed the ALJ's opinion regarding the company's social media policy. The NLRB criticized the ALJ for focusing solely on the first paragraph of the policy and emphasized that workplace rules must be analyzed as a whole, rather than in isolated parts. The NLRB then applied the first step of the Boeing Test and found that, by analyzing the social media policy in its entirety, it was clear that the policy did not interfere with any protected Section 7 activity under the NLRA because a reasonable employee would find that the policy only affects the tone of public postings that employees could make on social media about the company. Specifically, the NLRB found:

Read in its entirety, the rule makes clear that, to safeguard the reputation and interests of the company, employees referring to the company on social media must be respectful and professional, must not disclose proprietary information, must respect their coworkers, and must not harass, disrupt, or interfere with another person's work or create an intimidating, offensive, or hostile work environment. Employees would reasonably understand that adhering to those specific expectations would support the general expectations described in the rule's first paragraph without infringing on their Section 7–protected rights to discuss, criticize, or complain about working conditions with coworkers or the public when using social media.

The NLRB further found that the policy did not prohibit private communications between employees over social media regarding their work conditions. The NLRB also noted that the fact that the policy could have been drafted more narrowly was not a justification for striking it down. As a result, the NLRB found that the policy was lawful under the first step of the Boeing Test.

Takeaway

It appears from the NLRB's decisions in Shamrock Food Company and Bemis Company that companies may institute social media policies that, to some extent, limit what their employees publicly post on social media about the company, so long as the policy is designed to protect the company's public image. However, companies cannot impose policies that prevent employees from using social media to publicly discuss, criticize, or complain about their working conditions, nor can companies prevent employees from privately communicating with each other over social media regarding workplace issues.

The legality of workplace social media policies will likely become a heavily litigated issue due to the growing prevalence of social media in everyday life.2 Any company with a policy governing its employees' use of social media should closely analyze these recent NLRB decisions to ensure that its own social media policy is lawful under the NLRA.

Footnotes

1 https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/social-media-0

2 For example, in the second quarter of 2020 Facebook reported that it had nearly 1.79 billion daily active users.

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