October 2, 2012
Just two weeks after the National Labor Relations Board’s first decision regarding the lawfulness of an employer’s social media policy, another employer received an adverse decision on its social media policy, this time by a Board administrative law judge. On September 20, 2012, ALJ Clifford Anderson ruled that EchoStar Technologies’ social media policy chilled employees’ Section 7 rights and thus violated Section 8(a)(1) of the National Labor Relations Act.
The challenged portions of the policy (i) prohibited employees from “mak[ing] disparaging or defamatory comments about EchoStar, its employees, officers, directors, vendors, customers, partners, affiliates, or our or their products/services”; and (ii) further prohibited employees’ participation in personal social media activities “with EchoStar resources and/or on Company time” without company authorization.
Applying the test set forth in Lutheran Heritage Village-Livonia, the judge preliminarily found that the EchoStar policy did not explicitly restrict Section 7 activity and noted the absence of a claim that the policy was promulgated in response to union activity or that it had been applied to restrict the exercise of Section 7 rights. He found, however, that the term “disparaging” was impermissibly overbroad and would be read by a reasonable employee to intrude on and chill the employee’s right to engage in activities protected by Section 7 of the Act.
ALJ Anderson further rejected EchoStar’s argument that a “savings clause” salvaged the rule. The clause advised employees to contact Human Resources if they had questions regarding the handbook and further stated that if a conflict arose between an EchoStar policy and the law, the appropriate law would govern and the policy would be conformed in accordance with that law. Noting that the clause appeared in the introductory sections of the handbook, several pages before the social media policy, the ALJ found that a general admonition to contact Human Resources does not create a “legal loop” that an employee must jump through before the rule may be challenged. He further found that a boilerplate clause that a document’s provisions be applied and interpreted in a legally permissible manner does not save an otherwise invalid rule under the Act. Without any analysis, the ALJ also found that the rule prohibiting employees from using personal social media with company resources and/or on company time also violated the Act.
Additionally, ALJ Anderson invalidated several other handbook policies (or portions thereof), including policies regarding “contact with the media” and “contact with government agencies," the “investigations” policy insofar as it required that employees “maintain confidentiality” during internal company investigations, and the portion of the “disciplinary actions” policy defining “insubordination” to include “undermining the Company, management or employees.” In each instance, the ALJ found the challenged language to be overbroad and likely to induce a reasonable employee to conclude that it encompassed, and thereby prohibited, protected Section 7 activity.
Similar to the Board in Costco, ALJ Anderson appears to have closely tracked the reasoning of Acting General Counsel Lafe Solomon, as set forth in Mr. Solomon's three Operations Memos issued during the past 14 months. That said, the Board’s analysis of social media policies remains in its infancy and little specific guidance on permissible policy language is currently available. Until further decisions and guidance are issued, employers should continue to consult with counsel in crafting their social media policies, with an eye toward (i) avoiding broad, vague prohibitions; (ii) including specific examples of prohibited conduct; and (iii) inserting appropriate disclaimers within the policy itself.