In an “Upset” Win, an Employer’s Social Media Policy is Upheld by the NLRB

As we posted back in May, the NLRB recently has scrutinized employers’ social media policies, often holding that such policies violate Section 7 of the NLRA by limiting employees’ rights to engage in “concerted activities” for the purpose of collective bargaining.  But, a recent decision from an NLRB Administrative Law Judge (ALJ) in San Francisco has bucked that trend by finding in favor of the employer.[1]

The social media policy at issue was from the employee handbook for Bubba Gump Shrimp Company restaurants.  The NLRB’s General Counsel argued that the following policy language could be construed by employees to prohibit “concerted activity” under Section 7:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business.  This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission.

The ALJ disagreed, however, and dismissed the complaint in its entirety.  He explained that the above policy must be interpreted as a whole; and, when doing so, it was evident that the policy did not forbid online speech on all job-related issues, but instead regulated only the manner in which such speech should be discussed and debated (i.e., employees could post on social media, but should be civil and considerate when doing so).

Practical Pointers:

  • While the employer escaped liability here, this case still serves as a reminder that the NLRB will continue to apply its strict interpretation of Section 7 to social media policies.  Employers should be careful when drafting these policies to minimize the risk that they could be interpreted as “chilling” any “concerted activity.”  Some options include inserting an explicit disclaimer that the policy is not intended to restrict any Section 7 rights and defining as specifically as possible the restricted conduct.
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