Yesterday, I started my recap of the Connecticut Bar Association seminar on social media & employment law that I had the opportunity to speak at. 

In today’s post, I’m going to focus on another portion of what NLRB Regional Director Jonathan Kreisberg said at the seminar — something that may impact employers that have unions and those that don’t.

Lost in the commotion about the AMR case (popularly known as the "Facebook Firing" case) was the fact that the NLRB also challenged the employer’s personnel policies — saying that they were overbroad and not narrowly tailored to meet the employer’s legitimate business interests.  

What concerned the NLRB was that the company had a rule or policy that, in its view, employees would reasonably construe has prohibiting them from engaging in protected concerted activities.

The NLRB’s support for this proposition is the Lutheran Heritage Village case from several years ago which struck down work rules in other contexts.

In the AMR case, the policy said that employees were prohibited from posting pictures of themselves in any media "which depicts the company in any way, including but not limited to a Company uniform, corporate logo or an ambulance" without prior written approval. 

The NLRB argued that the depiction element was too broad and should be written more narrowly.

In other cases, Kreisberg said that the NLRB has challenged standards of conduct that prohibited "rude or discourteous behavior to a client or coworker" (saying that was too broad because rude behavior is necessary in a workplace) or prohibited use of "language or action that is inappropriate in the  workplace whether racial, sexual or of a general offensive nature" (saying that such standards are also overbroad).    

For employers, does this mean you should engage in a rewrite of all your policies to satisfy the NLRB? Not necessarily.  As Kreisberg noted, some employers can temper the language by adding a waiver (in some but not all cases) that says, in effect, that the policies should not be interpreted to interfere with Section 7 rights. 

At the very least, this ought to serve as a reminder to all employers that your personnel policies and employee handbook should not simply sit on your shelf (or your computer) but should be reviewed as a standard practice. 

  • Jonathan Kreisberg

    Thanks for your excellant coverage of the CBA Social Media panel. However, I’d like to clarify that I did not say that rude behavior is “necessary” in the workplace. Rather, I stated that “rude” behavior frequently occurs in the course of protected concerted or union activities, as does “inappropriate” or “offensive” or “disrespectful” behavior, thereby making the use of such terms in employer rules overly broad and contrary to the NLRA. Therefore, I recommended that employers avoid the use of such words in their rules and policies, unless they included an appropriate caveat that such language is not meant to restrict employees from engaging in protected concerted activities related to their wages, hours and working conditions.