Upon my arrival at the office this morning, after getting my coffee, I sat down at my computer and went to read BNA’s Daily Labor Report, as I do first thing almost every morning. After reading about the most recent actions in Congress seeking to block the NLRB’s Ambush Election Rules, I was attracted to an article that was entitled “English-Only Policy for Hospital Workers Violated Rights . . .” Since this is an issue that pops up regularly, I wanted to read the most recent case on the subject, so I opened the article and was surprised to find that this was an NLRB case, not an EEOC case. On March 18, 2015, Administrative Law Judge Lisa D. Thompson found that a Nevada health systems policy that required employees to speak English at all times when on duty violated Section 8(a)(1) of the National Labor Relations Act since it could restrict employees from engaging in discussions regarding terms and conditions of employment. The employer argued that its English only rule was based on guidance from the Equal Employment Opportunity Commission that allowed such rules for reasons of business necessity.
Not surprisingly, ALJ Thompson noted that this was an issue of first impression for the National Labor Relations Board, since no prior Decision of the NLRB had ever addressed the issue. Quoting from the Decision, the rule specifically “requires all employees to speak and communicate only in English ‘when conducting business with each other,’ ‘when patients or customers are present or in close proximity,’ and ‘while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.’” In seeking the finding that the rule was a violation of the National Labor Relations Act, Counsel for the General Counsel (in layman’s parlance – the prosecutor) argued that the rule was overbroad and that it inhibited employees, particularly non-native English speaking employees, from being able to freely communicate (in their native language) about working conditions and/or other terms or conditions of employment. As noted, the employer’s defense was based, at least in part, on current EEOC guidance. Although the Administrative Law Judge gave the appearance of analyzing the potential tension between Section 7 of the National Labor Relations Act and the EEOC Guidance, she dealt with this by quickly concluding that the employer’s rule was not justified by business necessity. With respect to the employer’s arguments that nothing in the rule prohibited employees from speaking in their own language on their own time, the Administrative Law Judge launched into a comparison of this rule with the Board’s traditional no-solicitation rule analysis.
Less surprisingly, the ALJ also found Employer rules prohibiting conduct that interferes with the Employer’s operations or brings “discredit” on the Employer, or making negative comments about co-workers or the hospital to be violative of the Act. Even though most Employers would consider these rules to be very reasonable, the Obama NLRB has been striking them down at a rapid rate. Valley Health System 28-CA-123611
This case appears to represent yet another example of the NLRB’s willingness to expand the scope of its enforcement authority, even if it potentially conflicts with other administrative agencies. Accordingly, employers are advised yet again of the need to thoroughly review all of their existing rules and policies to avoid being found guilty of an unfair labor practice by the National Labor Relations Board.
This article is authored by attorney Thomas R. Davies and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
Yikes, Judge Says Employer Can’t Ban the Use of Social Media During Company Time
by HDlawblog Posted: Friday, 11/16/2012A National Labor Relations Board (“NLRB”) administrative law judge (commonly referred to as an ALJ) recently directed an employer to remove a provision from its social media policy that prohibited employees from using social media during “company time,” on the basis that such a prohibition violated employees’ rights under the National Labor Relations Act (“NLRA”).
In the EchoStar Technologies, LLC case, an employee challenged two provisions in the company’s updated employee handbook that related to the company’s social media policy. Specifically, the employee challenged the prohibition against making disparaging or defamatory comments about the company and the prohibition against employees using social media with company resources during company time.
The employee argued that such prohibitions violated Section 8(a)(1) of the NLRA, which bans employer interference with an employee’s Section 7 rights. Section 7 of the NLRA protects employees’ rights to engage in unionization activities and the right of nonunion employees to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The NLRB general counsel’s office later filed a complaint in the case.
In ruling that both challenged provisions should be removed from the company’s employee handbook, the ALJ noted that this case centered around whether a reasonable employee would view the company’s social media policy as chilling unionization activities or other protected concerted activities. The test for making such a determination is whether an employee’s Section 7 rights “suffered a reduction or inhibition” as a result of the policy. This test is applied with the reasonable person standard, meaning the determination considers how a reasonable person would react to the prohibition, not whether the employees involved actually felt threatened.
The ALJ struck down the ruling banning “disparaging comments” on social media sites on the grounds that it was similar to another case where the NLRB did not allow a rule prohibiting “derogatory” comments about the employer. In Southern Maryland Hospital Center, 293 N.L.R.B. 1209, 132 LRRM 1031 (1989), the NLRB explained that such a ban is problematic because “an assertion that an employer overworks or underpays its employees, which would constitute the most elementary kind of union propaganda, could fairly be regarded as ‘derogatory’ toward the employer.” Accordingly, in EchoStar, the ALJ held that the prohibition against disparaging comments intruded on employees’ Section 7 activities and ordered the prohibition removed from the employee handbook.
Unfortunately, the ruling in EchoStar did not shed much light on why the ALJ struck down the employer’s prohibition against the use of social media on company time. Nevertheless, the ALJ made it clear that such a ban also needed to be removed from the employer’s handbook. We can only surmise that the ALJ agreed with the general counsel’s argument that essentially said the ban was too broad because it could be interpreted as prohibiting employees from participating in social media activities through their own devices and during their breaks, lunch, and before and after work. Notably, the general counsel’s office pointed out that the phase “company time” is ambiguous and had already been found to be problematic in other cases because it does not let employees know that protected activities may occur on breaks, during lunch and before or after work. Although the employer argued that it had a huge problem with employees using social media for personal matters during work hours its argument was to no avail.
Lesson for Employers: Social media policies raise a host of issues. Because overly broad restrictions on employees’ social media use might be deemed to violate the NLRA, employers should seek the assistance of an attorney when crafting their social media policy. The attorneys at Harmon & Davies, P.C. are here to assist you with all such needs.
This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
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