Recent NLRB Activity Has Implications for Social Media

It has been a busy few months at the National Labor Relations Board (NLRB). Since December 2017, the NLRB has: released more than 40 advice memoranda containing guidance on a plethora of labor issues; overruled the joint employer test it adopted in 2015 in Browning-Ferris Industries, and then vacated its decision (Hy-Brand Industrial Contractors, Ltd.) due to a board member’s conflict of interest; and issued decisions in three other cases that significantly alter the standards applied to micro-bargaining (PCC Structurals, Inc.), unilateral changes (Raytheon Network Centric Systems), and employee handbooks (The Boeing Company). Two of these developments have implications for social media in the workplace.

First, in one of the advice memoranda released by the NLRB (Team Fishel), the NLRB’s Division of Advice concluded that a policy restricting the use of social media on company equipment was unlawfully overbroad and represented an opportunity to extend the Board’s decision in Purple Communications to social media. In Purple Communications, the Board held that employees who have been given access to a company email system have a presumptive right to use email to communicate about the terms and conditions of their employment during non-working time. According to the Division of Advice, although Purple Communications was limited to the use of company-provided email, the “internet, including social media, shares many of the email-related attributes that were discussed by the Board in Purple Communications.” Those similarities weighed in favor of giving employees a presumptive right to use social media as a means of communicating about Section 7 activities during non-working time.

Second, with its decision in The Boeing Company, the NLRB threw out the standard it has used to determine whether handbook policies, including social media policies, are lawful. That standard, which the NLRB adopted in 2004 in Lutheran Heritage Village-Livonia, focused on whether a policy could “reasonably be construed” by employees as chilling protected rights under the National Labor Relations Act (NLRA). The breadth of this standard made it difficult for employers to craft compliant policies on social media and other topics, despite attempts by the NLRB’s Office of the General Counsel to provide guidance. Now, under a new standard announced in The Boeing Company, the NLRB will consider both the impact that a workplace policy may have on NLRA rights, and the employer’s legitimate justifications for the policy.

Second Circuit Upholds NLRB’s Views on Employee Social Media Use

Last year, the National Labor Relations Board held for the first time that “liking” a comment on a Facebook page may qualify as protected activity if it relates to comments that are otherwise protected under Section 7 of the NLRA.  For a brief overview of this case, Three D, LLC, see our previous blog post here.

Now, the Second Circuit Court of Appeals has affirmed the Board’s decision. Although the Second Circuit issued its ruling as an unpublished summary order, which means that it does not have precedential effect, employers should not discount the effect that this ruling will have on the Board’s aggressively pro-employee agenda.

Three D argued on appeal that the Board incorrectly ruled that a discussion by a group of employees on Facebook was protected under the NLRA.  Although the discussion ostensibly related to the terms and conditions of employment, because it involved the issue of taxes and wages, the company argued that the employees crossed the line by incorporating obscene and disloyal comments into their discussion.  According to the company, the Board ignored the company’s legitimate interest in preventing the disparagement of its reputation, particularly where the employees’ Facebook discussion was viewable – and was in fact viewed – by customers.

The Second Circuit disagreed, however, finding that almost “all Facebook posts by employees have at least some potential to be viewed by customers” and that, even though customers did see the Facebook discussion at issue, the “discussion was not directed toward customers and did not reflect on the employer’s brand.”  Consequently, the employees’ comments – including the act of “liking” the comments – were protected and precluded the company from disciplining the employees.

The decision raises an important question for employers in the area of social media, which is:  when does an employee’s post “reflect on the employer’s brand?”  Here, even though the employees’ posts referenced the name of the company and alleged it had mismanaged its employees’ taxes, the comments were not found to reflect on the company’s brand.  The Second Circuit’s decision therefore suggests than an employee’s disparaging comments will have to be far more specific before losing protection under the Act, particularly where the comments arguably relate to terms and conditions of employment.  In other words, an employee’s online post does not become unprotected simply because it contains obscenities and is viewed by the company’s customers.  According to the Second Circuit, this conclusion simply reflects “the reality of modern-day social media use.”

NLRB Gives Employees the Right to Use Company Email for Protected Communications

Breaking new ground, the National Labor Relations Board ruled last week that employees have the right to use company email during non-working time to communicate about the terms and conditions of their employment. The Board’s decision in Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014),  overturns its 2007 decision in Register Guard, which held that employees generally do not have a right to use company email for communications protected under Section 7 of the National Labor Relations Act. Our previous posts on the Purple Communications case are here and here.

At issue in Purple Communications was an electronic communications policy that prohibited employees from using their employer’s email system except for “business purposes.” The employees worked as interpreters at various call centers and used company-provided email accounts in the course of their work. The union representing the employees claimed that the business-only email policy was unlawful on its face because it interfered with the employees’ ability to engage in union organizing efforts.

Reversing its holding in Register Guard, the Board found that it had struck the wrong balance in that decision between the rights of employees to engage in Section 7 communications and the property rights of employers in their electronic communications systems. Striking a new balance, the Board held in Purple Communications that employees who have been given access to a company email system have a presumptive right to use the system to communicate about the terms and conditions of their employment during non-working time. According the Board, a company may rebut the presumption and justify a total ban on non-work email by showing that “special circumstances” make the ban necessary to maintain production or discipline. However, absent these special circumstances, employers may impose uniform controls over their systems only to the extent that the controls are needed to maintain production and discipline.

The Board’s decision in Purple Communications leaves a number of questions unanswered, including what showing will be required to demonstrate “special circumstances” justifying a total ban on non-work email use. In addition, because the decision is limited to employee use of company email systems, questions remain as to what restrictions may be permissible concerning the use of other electronic communications systems. What is clear, however, is that with the decision in Purple Communications, the Board is taking very seriously its responsibility to adapt the NLRA to what it has described as the “changing patterns of industrial life.”

The NLRB's Latest Digital Developments

Last May, we highlighted a pending National Labor Relations Board (NLRB) case where the Board requested comments on whether it should reconsider its view that employees do not have a statutory right to use employer-owned email systems for protected concerted activities. Based on its request in Purple Communications, Inc., the Board appeared to be setting the stage for a potential reversal of its position in Register Guard—as well as a significant re-evaluation of what restrictions an employer may, and may not, impose on the use of its electronic communications systems.

It appears now, however, that the Board is still rehearsing its script:  last month, the Board issued its decision in Purple Communications, 361 NLRB No. 43, (Sept. 24, 2014), and explained that it would “sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.”  As a result, the Board’s decision did not reach the merits of whether Register Guard should be overturned.   This means that policies prohibiting any non-business use of an employer’s email system will most likely continue to be lawful—at least in the near term.

In another recent development, the Board held for the first time that merely “liking” a comment on a Facebook page may qualify as protected activity if it relates to comments that are otherwise protected under Section 7 of the NLRA.  Among the issues In Three D, LLC, 361 NLRB No. 31 (Aug. 22, 2014), was whether a bar unlawfully terminated several employees after discovering their discussions on Facebook.  The employees had learned that they owed additional taxes as a result of an accounting error by their employer and had taken to Facebook to vent their frustrations.  One of the employees did not offer any written comments, but did “like” another employee’s post.  The Board found that the comments—including the mere “liking” of another post—qualified as protected concerted activity because they concerned a group discussion of workplace complaints.  It was therefore unlawful for the bar to terminate the employees for their participation in the exchange.

The Board’s conclusion that “liking” a social media post may qualify as protected activity is not altogether surprising.  Other courts, for example, have found that “liking” a post qualifies as speech protected by the First Amendment, reasoning that “liking” a comment is just as much a substantive statement as the comment itself.  It is perhaps no surprise, then, that the Board’s decision appears to “like” the same logic.

At-Will Employment Clauses and the NLRB

The National Labor Relations Board (“NLRB”) has made headlines in the last few years with its close scrutiny of workplace social media policies.  However, making something of a quieter splash, the NLRB has also been scrutinizing another practice that, in its view, has the potential to “chill” employee rights in violation of the National Labor Relations Act (“NLRA”):  at-will employment clauses in employee handbooks.

The issue of at-will employment clauses came to the fore in 2012, when an administrative law judge found that the following language in an at-will provision in an employee handbook violated the NLRA:  “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.”  In the judge’s opinion, this acknowledgement, which followed a standard description of the at-will employment relationship, violated the NLRA because it required the employee to agree that the relationship could not be changed and amounted to a waiver of the employee’s right to advocate for a change in status.

More recently, however, in a case called Windsor Care Centers, the NLRB’s Office of General Counsel (“Office”) found that an at-will clause was not unlawful where it provided the following language at the end of the clause:

Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy.  Any such modification must be in writing and signed by the employee and the President.

In Windsor, the Office explained that the NLRB applies a two-step inquiry to determine whether a work rule would reasonably tend to chill employees in exercising their rights.  First, a rule is unlawful if it explicitly prohibits employees from exercising their rights under the NLRA.  Second, a rule is unlawful even if it does not explicitly restrict protected activities if: (1) employees would reasonably construe the rule to prohibit protected activity; (2) the rule was created in response to union activity; or (3) the rule has been applied so as to restrict protected activity.

Applying this two-step inquiry, the Office found that the at-will clause in Windsor did not explicitly restrict protected activities and that the company had neither created the rule in response to union activity nor applied it in a discriminatory manner.  The Office therefore concluded that the clause would be unlawful only if employees would reasonably construe it to prohibit protected activity.  According to the Office, the clause could not reasonably be construed as restrictive, because the language “simply describes the method by which employees can, at present, create an enforceable employment contract with the employer modifying their at-will status.”  Because the language did not require employees to agree that their status could not be changed, the Office concluded the at-will clause was lawful and distinguishable from the clause at issue in the 2012 case, American Red Cross Arizona Blood Services.

In light of the NLRB’s recent activity, businesses should revisit the language in their employee handbooks and consider revising at-will provisions that do not allow for any modification of an employee’s at-will status.

Northwestern Scholarship Athletes Make It Into the Red Zone

This past Wednesday, Peter S. Ohr, the National Labor Relations Board (NLRB) Regional Director in Chicago, ruled that all scholarship football players at Northwestern University who have not exhausted their college eligibility are “employees” under the National Labor Relations Act (NLRA).  Based on that determination, he scheduled an election to allow 85 players to determine whether they want the College Athletes Players Association (CAPA) to serve as their exclusive bargaining agent.  We originally highlighted this story in a blog entry dated January 31, after the players, with the assistance of CAPA and the financial backing of the United Steelworkers, originally filed their petition with the NLRB.

In determining that Northwestern's grant-in-aid scholarship players met the statutory definition for "employees," Ohr's 24-page decision concentrated on the pervasive 24/7 control that the team's coaching staff has over players' lives.  He outlined a detailed description of practice schedules, workout requirements and coaches' supervision, concluding:

[T]he coaches have control over nearly every aspect of the players’ private lives by virtue of the fact that there are many rules that they must follow under threat of discipline and/or the loss of a scholarship. The players have restrictions placed on them and/or have to obtain permission from the coaches before they can: (1) make their living arrangements; (2) apply for outside employment; (3) drive personal vehicles; (4) travel off campus; (5) post items on the Internet; (6) speak to the media; (7) use alcohol and drugs; and (8) engage in gambling.  The fact that some of these rules are put in place to protect the players and the Employer from running afoul of NCAA rules does not detract from the amount of control the coaches exert over the players’ daily lives.

In Ohr's view, this level of control far exceeds the kind of control a school customarily has over a student. As part of his analysis, he distinguished the circumstances involving Northwestern's scholarship athletes from a set of graduate students at Brown University whose efforts at unionization were rebuffed by the NLRB in 2004.   In Brown University, 342 NLRB 483 (2004), the NLRB determined that graduate assistants were not “employees” after considering: (1) the status of graduate assistants as students; (2) the role of the graduate student assistantships in graduate education; (3) the graduate student assistants’ relationship with the faculty; and (4) the financial support they received to attend Brown.  Although Ohr found that statutory test to be inapplicable in connection with Northwestern's scholarship athletes -- because the players’ football-related duties were unrelated to their academic studies -- he reasoned that the outcome would not change even after applying Brown University's four factors.  Ultimately, in Ohr's view, “[I]t cannot be said the Employer’s scholarship players are ‘primarily students.’"

Although the NCAA was not a party to the proceeding, its chief legal officer responded to Ohr's decision as follows:

[T]he NCAA is disappointed that the NLRB Region 13 determined the Northwestern football team may vote to be considered university employees. We strongly disagree with the notion that student-athletes are employees.

We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid.

Over the last three years, our member colleges and universities have worked to re-evaluate the current rules. While improvements need to be made, we do not need to completely throw away a system that has helped literally millions of students over the past decade alone attend college. We want student-athletes – 99 percent of whom will never make it to the professional leagues – focused on what matters most – finding success in the classroom, on the field and in life.

Ohr took great pains, in drafting his decision, to anticipate how his reasoning might be subject to attack on appeal and to preemptively address those issues.  If his decision is upheld, it could radically reshape the face of big-time college athletics -- at least at private universities.  The NLRB's ruling does not apply to public universities.  Scholarship athletes at those institutions are governed by state law and 24 states, many of them located in the South, have right-to-work legislation.
 
Ohr's decision will certainly be subject to an appeal to the NLRB in Washington, D.C. Northwestern University has until April 9, 2014 to request a review.  Additionally, the University said "it will continue to explore all of its legal options in regard to this issue."  Although the NCAA and Northwestern contend that unionization and collective bargaining are not the appropriate methods to address the concerns raised by student athletes, if I were the President of Duke, Notre Dame or Stanford, I might begin to gameplan what the future might look like across the bargaining table from my star quarterback and his offensive linemen. Seventeen private universities at the Division I level field college football programs like Northwestern University.

Union Representation: Coming to a Football Stadium Near You?

As everyone readies themselves for this weekend's Super Bowl, where one of the principal storylines has been the potential for snowy conditions, a much more serious storm emerged this week within the world of college football.

On January 28, a group of football players from Northwestern University filed a petition with the Chicago office of the National Labor Relations Board (NLRB) seeking union representation.  They have formally requested that the College Athlete Players Association (CAPA) be recognized as their exclusive bargaining agent.  CAPA's election petition represents the first step in the union certification  process.  If the NLRB determines that the players have the right to unionize, a sea of change in the relationship between universities, student-athletes and the NCAA will follow.

To have the NLRB consider a petition to be unionized, at least 30 percent of the members of a potential bargaining unit must sign and submit union cards.  By filing signed cards with the NLRB on behalf of the Northwestern players, CAPA triggered a process that will commence at the regional level of the NLRB and almost certainly wind up in federal court.  Initially, one of the pivotal legal issues will involve whether scholarship athletes can be classified as "employees" under the National Labor Relations Act, a definition that has evolved over time through the holdings set forth in many court decisions.

For its part, Northwestern's administration draws a sharp distinction between a wage-earning employee and a student-athlete responsible for paying tuition for his or her education.  A series of court decisions analyzing whether student athletes were employees entitled to medical benefits lends credence to the University's position.  Not surprisingly, the NCAA's legal team has also argued that the matter is cut and dried:

• This union-backed attempt to turn student-athletes into employees undermines the purpose of college: an education. Student-athletes are not employees, and their participation in college sports is voluntary. We stand for all student-athletes, not just those the unions want to professionalize.
• Many student athletes are provided scholarships and many other benefits for their participation. There is no employment relationship between the NCAA, its affiliated institutions or student-athletes.
• Student-athletes are not employees within any definition of the National Labor Relations Act or the Fair Labor Standards Act. We are confident the National Labor Relations Board will find in our favor, as there is no right to organize student-athletes.

Initially, the unionization push was the brainchild of Northwestern quarterback Kain Colter, who reached out to the organization National College Players Association (NCPA) for help.  Colter became a leading voice in regular NCPA-organized discussions among college players from around the country.  Interestingly enough, Colter went public with his concerns in Northwestern's game last season against the University of Maine Black Bears.  That weekend, he raised awareness for what was called the "All Players United" movement by joining with teammates and athletes from other schools who wore wristbands and towels that read "APU."

Developments in this high profile dispute will certainly be worth following.  If the players are able to establish that the tremendous degree of control exercised over their athletic lives by their colleges renders them akin to employees, the color commentary we hear on game day may eventually encompass discussions about collective bargaining, player grievances and wage scales.

When Job Applicants Volunteer Union Membership

I recently provided some compliance counseling in a situation where an employer engaged in hiring laborers for a new construction project encountered applicants who brought up their union affiliation during the interview process or included union-specific content on their application materials.  Because the employer sensed he might be entering dangerous waters, he reached out for guidance.

The federal agency that determines whether an employer has committed an unfair labor practice is the National Labor Relations Board (NLRB).  When a labor union or union member believes that an employer has evaluated the suitability of job candidates according to their pro-union opinions, past union membership or interest in union organizing, the union or union member will often report that conduct to the NLRB and request an investigation.

The basic test the NLRB has developed for evaluating whether a pre-employment hiring process violates federal labor laws is whether, under all circumstances, the employer's process reasonably tends to restrain, coerce, or interfere with rights guaranteed by those laws.  For example, the NLRB has determined that questioning job applicants during interviews violates federal law when the questions are designed to generate information for the employer about pro-union opinions, past union membership or interest in union organizing, and when the interview includes threats of unfavorable consequences if the applicant engages in pro-union activity or has contact with union organizers.   Even in cases when the job applicant is hired, the NLRB can still determine that questions during the job interview concerning former union membership and union preference are unlawful.

The problem, of course, is that sometimes unions send their organizers -- known as “salts” -- to actually apply for jobs with an employer and, during the interview process, these persons openly announce that they are pro-union or intend to organize for the union while working.  The U.S. Supreme Court has held that even these persons must be treated like any other job applicant, without discrimination.

The following rules MUST be followed at all times by supervisors and all hiring personnel:

1. Do not ask applicants about union membership either on a form or during an interview.
2. Never tell union applicants that no jobs are open while running a help wanted ad or hiring off the street.
3. Never hire non-union applicants with little experience for skilled jobs, despite the fact that qualified union applicants are available.
4. Never tell union applicants that interviews or written applications are required while hiring other applicants without them.

It is important for supervisors and all hiring personnel to be aware of the basic rules of salting.  Your failure to respond properly can result in litigation against the employer, including severe financial damages and penalties.

"What if an applicant tells me during an interview that he or she is a union member without my asking?"

That should make no difference to your hiring practices. Just follow your normal procedures.  Do not respond negatively, angrily or critically when statements like that are made during an interview.  Your response to any reference to union membership or pro-union opinions should be, "It is our practice to hire the best qualified applicants.  We give no preferential treatment to anyone nor do we discriminate against anyone on the basis of their union membership."