Wednesday, April 4, 2012

NLRB Administrative Law Judge splits the baby in ruling on a social media policy


Anytime any piece of the NLRB takes action with regard to an employer’s social media policy, it’s newsworthy (even if you’re getting tired of reading about it). Such is the case with G4S Secure Solutions (USA) Inc. (3/29/12) [pdf], decided by an administrative law judge.

At issue in G4S Secure Solutions were the following two provisions of the employer’s social media policy:

  • Do not comment on work-related legal matters without express permission of the Legal Department.
  • Photographs, images and videos of G4S employees in uniform, (whether yourself or a colleague) or at a G4S place of work, must not be placed on any social networking site, unless express permission has been given by G4S Secure Solutions (USA) Inc.

The ALJ agreed with the NLRB’s General Counsel that the “no comment on work-related legal matters” provision was overly restrictive of employees’ rights to engage in protected concerted activity:

I find the rule is reasonably interpreted to prevent employees from discussing working conditions and other terms and conditions of employment, particularly where the discussions concern potential legal action or complaints employees may have filed…. The rule at issue here would reasonably be read to prohibit two employees … from sending messages to each other about their issues at work … via a social networking site. Likewise, it would reasonably prohibit a discussion group among concerned employees on a social networking site.

Conversely, however, the ALJ concluded that the “no photograph” provision was lawful:

Respondent clearly has legitimate reasons for not having pictures of uniformed employees or employees who are at work posted on Facebook and similar sites. Starting with the worksite, Respondent does have patient privacy concerns for the EMT services it provides. Moreover, Respondent serves a variety of clients on a national basis. The various businesses and government agencies where its employees work can be presumed to have their own rules centered on privacy and legal concerns. I find the rule at issue here is reasonably construed as protecting Respondent’s clients. To read it as a prohibition on Section 7 activity strikes me a stretch, particularly considering the rule does not ban photographs but merely prohibits employees from posting them on social networking sites.

I’ll leave you with two observations:

  1. The NLRB’s Acting General Counsel does not have the last word on these issues. Many (including me) were up in arms when the NLRB’s Office of General Counsel issued its latest report on social media in the workplace, which opined that almost all workplace policies that could potentially regulate social media violate the NLRA. G4S Secure Solutions disagreed with the General Counsel, and concluded that an employer’s reasonable and legitimate reason to regulate employees’ use of social media trumps a potential and tangential effect on employees’ protected, concerted activity.

  2. These issues remain very unsettled. One opinion from an ALJ is nowhere close to a conclusive proclamation of the law. This case will head to Washington for consideration by the NLRB, which could reach an opposite conclusion on the “no photographs” policy. Ultimately, the federal circuit courts, and the Supreme Court, will have to weigh-in on these issues. But, that guidance is years away. Until then, move very cautiously, and only with the advice of counsel well-versed on these issues, if trying to regulate social media in your workplace.

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