Social Media Policy Prohibiting Photos of Security Employees in Uniform and Parts of Confidentiality Rule Unlawful: NLRB | Practical Law

Social Media Policy Prohibiting Photos of Security Employees in Uniform and Parts of Confidentiality Rule Unlawful: NLRB | Practical Law

In G4S Secure Solutions, the National Labor Relations Board (NLRB) held that a social media policy prohibiting photos of security employees in uniform and part of a confidentiality rule were unlawful.

Social Media Policy Prohibiting Photos of Security Employees in Uniform and Parts of Confidentiality Rule Unlawful: NLRB

by Practical Law Labor & Employment
Law stated as of 01 Sep 2017 • USA (National/Federal)
In G4S Secure Solutions, the National Labor Relations Board (NLRB) held that a social media policy prohibiting photos of security employees in uniform and part of a confidentiality rule were unlawful.
On August 26, 2016, in G4S Secure Solutions, the panel (Board) heading the NLRB's judicial functions held that an employer unlawfully maintained a social media policy that prohibited employees from commenting on "work-related legal matters" without permission or posting photos of security employees in uniform. The Board also held that the employer unlawfully maintained a confidentiality rule that prohibited employees making public statements about the employer's policies without permission. (364 N.L.R.B. No. 92 (Aug. 26, 2016).)

Background

G4S Security Solutions is a contractor that provides security services. A union sought to represent a bargaining unit of security officers employed by the employer on a light rail system in the Phoenix area. A representation election was scheduled for March 2011 but was postponed pending resolution of several unfair labor practice (ULP) charges against the employer.
An NLRB administrative law judge (ALJ) held that the employer unlawfully:
  • Prohibited employees from discussing the union at work.
  • Disciplined an employee for pursuing a sexual harassment complaint.
  • Maintained a confidentiality rule that:
    • subjected employees to discipline for improperly using or disclosing employer or client information; and
    • prohibited employees from making public statements about the employer's policies without permission.
  • Maintained a social media policy that prohibited employees from commenting on "work-related legal matters" without permission.
However, the ALJ held that the employer did not violate the National Labor Relations Act (NLRA) by prohibiting employees from posting photos of security officers in uniform on social media.
The employer filed exceptions to the ALJ's decision, and the NLRB filed cross-exceptions.

Outcome

The Board affirmed that ALJ's holding that the employer unlawfully:
  • Prohibited employees from discussing the union at work.
  • Disciplined an employee for pursuing a sexual harassment complaint.
  • Maintained a confidentiality rule that prohibited employees from making public statements about the employer's policies without permission.
  • Maintained a social media policy that prohibited employees from commenting on "work-related legal matters" without permission.
However, the Board reversed the ALJ's holding that the employer:
  • Unlawfully maintained a confidentiality rule that subjected employees to discipline for improperly using or disclosing employer or client information.
  • Did not violate the NLRA by prohibiting employees from posting photos of security officers in uniform on social media.

Confidentiality Rule

The employer maintained a confidentiality rule with the following language:
"The protection of confidential information, trade secrets, and company-specific operating procedures is vital to the interests and success of G4S Secure Solutions USA. Additionally, in the line of duty, you may come into contact with our customers' confidential information.
Employees who improperly use, reveal, copy, disclose or destroy G4S or client information will be subject to disciplinary action, up to and including termination of employment. They may also be subject to legal action even if they do not actually benefit from the disclosure. Such information includes any information considered proprietary by G4S or the client organization.
Do not give interviews or make public statements about the activities or policies of the company or our client without written permission from G4S Secure Solutions USA."
The Board held that employer:
  • Did not violate the NLRA by maintaining the first two paragraphs of the confidentiality rule, which subjected employees to discipline for improperly using or disclosing employer or client information. The Board reasoned that the first two paragraphs did not limit the use of employee information, unlike the rule found unlawful in Flamingo Hilton-Laughlin, 330 N.L.R.B. 287 (1999).
  • Unlawfully maintained the third paragraph of the confidentiality rule, which prohibited employees from making public statements about the employer's policies without permission. The Board majority (Chairman Pearce and Member Hirozawa) applied the "reasonably construe" standard from Lutheran Heritage-Livonia and concluded that employees would reasonably understand the third paragraph to limit their ability to discuss subjects protected by Section 7 of the NLRA (343 N.L.R.B. 646 (2004)). Member Miscimarra concurred with the ruling but not its rationale.

Social Media Policy

The employer maintained a social media policy with the following language:
"Photographs, images, and videos of G4S employees in uniform (whether yourself or a colleague) or at a G4S place of work, must not be placed on any social networking site, unless express permission has been given by G4S Secure Solutions (USA) Inc.
Do not comment on work-related legal matters without express permission of the Legal Department."
The Board held that the employer unlawfully maintained both paragraphs of the social media policy. The Board reasoned that:
  • Employees would reasonably understand both paragraphs to restrict their Section 7 rights.
  • The record did not support the argument that legitimate privacy concerns justified the social media policy.
  • Introductory language stating that the social media policy "will not be construed or applied in a manner that interferes with employees' rights under federal law" was insufficient to save the policy.
Member Miscimarra concurred in part and dissented in part. He argued that the Board should:
  • Overrule the Lutheran Heritage "reasonably construe" standard.
  • Instead analyze a facially neutral work rule by balancing the justifications for the rule against the potential impact on protected activity.
  • Recognize the legitimate national security interests in having images and video of employees engaged in security training exercises not being disseminated on social media.
    (See William Beaumont Hosp., 363 N.L.R.B. No. 162 (Apr. 13, 2016).)

Other Unfair Labor Practices

The Board majority (Chairman Pearce and Member Hirozawa) also held, among other things, that the employer unlawfully:

Practical Implications

This decision further demonstrates the Board's willingness to invalidate facially-neutral social media policies and confidentiality agreements under the NLRA (see Schwan's Home Service, Inc., 364 N.L.R.B. No. 20 (June 10, 2016)). This issue can affect employers regardless of whether their employees are represented by a union.
For further guidance on drafting a social media policy, see Standard Document, Social Media Policy.

UPDATE

On September 1, 2017, the US Court of Appeals for the Eleventh Circuit denied G4S Secure Solutions Inc.'s petition for review and granted the NLRB's cross-petition for enforcement in an unpublished per curiam opinion (G4S Secure Solutions Inc. v. NLRB, 707 Fed. Appx 610 (Sep. 1, 2017).