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NLRB Judge Adds to Uncertainty Regarding Work Rules and Social Media Policies

On June 4, 2014, an Administrative Law Judge (ALJ) with the National Labor Relations Board (NLRB) held in Professional Electrical Contractors of Connecticut, Case No. 34-CA-071532, that certain work rules and social media policies designed to protect customer privacy constituted unfair labor practices. The rules and policies at issue applied to employees who worked on customers’ premises.

ALJ Raymond Green ordered the company to cease and desist from enforcing any work rule or policy that:

  • Prohibits employees from disclosing the location and telephone number of employee customer assignments, as it could inhibit the ability of a labor union to meet and communicate with employees;
  • Prohibits employees from engaging in boisterous or disruptive activity in the workplace, based on prior Board decisions, because the rule is “sufficiently imprecise” and could encompass any disagreement or conflict among workers protected by Section 7 of the National Labor Relations Act (NLRA);
  • Prohibits employees from initiating or distributing chain letters, sending communications, posting information, or using personal computers in any manner that may adversely affect company business interests or reputation, because the rule overreached by including personal computers; or
  • Prohibits employees from photographing, taping, or recording any person, document, conversation, communication, or activity that in any way involves the company, its associates, customers (except to the extent that the customer disallows photographing or filing on its premises), or other individual with whom the company intends to do business. The ALJ opined that, on balance, the employees’ rights generally outweighed the employer’s well-intended interest in customer privacy.

The ALJ upheld the company’s policy prohibiting employees from disclosing customer information to other customers, third parties, or members of the employee’s family. He reasoned that such a rule would not unreasonably deter employees from talking to one another or the union about terms and conditions of employment. Some aspects of the ruling conflict with other ALJ decisions, adding to the uncertainty about which work rules or social media policies the NLRB and courts will ultimately determine to be impermissible. As ALJ Green observed, “[A] legitimate conflict of principles … will require Board and Appellate Court clarification.” The company is expected to appeal the decision to the full Board and, if necessary, to the appellate court.

This case is a perfect example of the NLRB General Counsel’s continued enforcement efforts to focus on work rules and policies that conceivably limit employee rights to discuss wages, as well as other terms and conditions of employment. Unfortunately, the ruling could affect employers who are targets of union organizing campaigns, not just those who already have collective bargaining agreements in place. The bottom line is that this ruling is another reason why all employers should regularly update and review their handbooks and policies with their employment law attorneys.

Kembra Sexton Taylor

Kembra Sexton Taylor, a partner located in the firm’s Frankfort office, practices in the areas of labor and employment, personnel, administrative, regulatory, appellate, and insurance defense law. She has extensive experience in representing clients regarding wage and hour, OSHA, state personnel, and other regulatory matters. She can be reached at taylor@mmlklaw.com or (502) 223-1200.

This article is intended as a summary of federal and state law and does not constitute legal advice.

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