National Labor Relations Act by Ronald W. Taylor of the law firm Venable LLP in the Fall 2011 CAPLAW Legal Update). Additionally, the NLRB issued a decision on September 7, 2012, Costco Wholesale Corp.,2 that follows the General Counsel’s guidance. In that decision, the NLRB found that a social media policy prohibiting employees from making statements that “’damage the Company, defame any individual or damage any person’s reputation’” was overly broad and would lead employees to reasonably conclude that they must refrain from engaging in protected communications about the terms and conditions of their employment.
NLRB Focuses on Workplace Practices By Anita Lichtblau, Esq., CAPLAW The National Labor Relations Board (NLRB) has recently focused on several common workplace practices that it found violate the rights of workers under Section 7 of the National Labor Relations Act (NLRA) to communicate with each other concerning the terms and conditions of their employment. In its decision, Banner Health System d/b/a/ Banner Estrella Medical Center,1 issued on July 30, 2012, the NLRB found that a hospital’s blanket policy and practice of asking employees interviewed during internal investigations not to discuss the matter with their coworkers while the investigation was ongoing constituted an unlawful violation of the employees’ right to engage in protected “concerted activities” under the NLRA. The NLRB said that the hospital should have determined on a case-by-case basis whether such an instruction was necessary. In order to justify such a prohibition on employees discussing a matter under investigation with other employees, the employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights. The employer’s generalized concern with protecting the integrity of the investigation was not enough; the employer was required to show in a specific investigation that witnesses needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or there was a need to prevent a cover-up. This decision comes after the NLRB’s General Counsel issued guidance on January 24, 2012 (Memorandum OM 1231) and on May 30, 2012 (Memorandum OM 12-59) interpreting the NLRB’s prior decisions and predicting the NLRB’s approach to employer’s social media policies. In the guidance, the General Counsel discusses how overly broad confidentiality and nondisparagement terms may illegally interfere with employee’s Section 7 rights to discuss the terms and conditions of their employment. (Also see a June 2012 CAPLAW e-Bulletin about the May guidance and the article Nonprofits Beware: Your Employees’ Blogs, Facebook Posts and Twitter Tweets May Be Protected by the “The employer’s generalized concern with protecting the integrity of the investigation was not enough...”
Viewed together, these decisions and guidance make it apparent that the NLRB is looking critically at practices that many employers have routinely followed in the past to determine their impact on employees’ right to engage in concerted activities. All employees, not just those in a union, have such rights. An employer would be wise to review its policies and practices in a wide variety of areas, but certainly including social media policies and internal investigations, to ensure that they do not interfere with such rights, either directly or implicitly. In the social media context, CAPLAW recommends that you look at the sample language that the NLRB approved in its May 2012 guidance and have your policy reviewed by a knowledgeable attorney. Providing specific examples of activities that are not prohibited by a policy is helpful to defending against a claim of an unlawful practice under the NLRA. In the context of an internal investigation, consultation with an attorney is also advised, as well as the drafting of an internal memo setting forth the justifications described by the NLRB in Banner Health if an instruction not to discuss the matter is given to employees who are interviewed. “Viewed at together, these decisions and guidance make it apparent that the NLRB is looking critically at practices that many employers have routinely followed in the past to determine their impact on employee’s right to engage in concerted activities. ”
(See end notes on page 13)
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CAPLAW Update Newsletter, Fall 2012 | 3