NLRB Approves Social Media and Company Information Policy Provisions, Pans Solicitation and Personal Business Rules | Practical Law

NLRB Approves Social Media and Company Information Policy Provisions, Pans Solicitation and Personal Business Rules | Practical Law

In Medic Ambulance Service, Inc., a split panel of the NLRB held lawful certain social media and company information policy provisions. The panel unanimously panned rules prohibiting conducting personal business and engaging in solicitation on company time.

NLRB Approves Social Media and Company Information Policy Provisions, Pans Solicitation and Personal Business Rules

by Practical Law Labor & Employment
Law stated as of 02 Aug 2023USA (National/Federal)
In Medic Ambulance Service, Inc., a split panel of the NLRB held lawful certain social media and company information policy provisions. The panel unanimously panned rules prohibiting conducting personal business and engaging in solicitation on company time.
NOTE: See the UPDATE at the end of this resource for subsequent developments affecting this decision.
On January 4, 2020, in Medic Ambulance Service, Inc., the panel (Board) heading the NLRB's judicial functions held lawful:
  • A social media policy guideline prohibiting disclosure of proprietary or confidential information of the employer or coworkers because employees would reasonably read that prohibition in the context of language referencing "copyrighted or trademarked company information, trade secrets, or other sensitive information" and not infer that the prohibition covers employees' contact information, wages, or other employment terms and conditions. The rule was a Boeing Category 1(a) rule.
  • A social media policy guideline limiting employees' use of the employer's name, logo, trademarks, or other symbols in social media posts to endorse, promote, denigrate or otherwise comment on any product, opinion, cause or person, because employees would reasonably read that prohibition in the context of another guideline precluding employees from purporting to represent the views of the employer in social media posts rather than as prohibiting employees from referring to the employer by name in a post criticizing employment terms and conditions. The rule was a Boeing Category 1(a) rule.
  • A social media policy guideline prohibiting posting of photos of coworkers without their written consent because employees would reasonably read that prohibition in the context of preceding instructions that employees respect other employees' privacy and dignity and not to prohibit sharing photos of employees engaging in Section 7 activity. The rule was a Boeing Category 1(a) rule.
  • A social media policy guideline prohibiting use of social media to disparage the employer or others because the employer has a legitimate justification in prohibiting its employees from disparaging it or its products to its customers and the public, outweighing the rule's potential to interfere with the exercise of Section 7 rights,. The Board noted that the rule does not expressly restrict employee communications with other employees. The rule was a Boeing Category 1(b) rule. (See Motor City Pawn Brokers Inc., 369 N.L.R.B. No. 132, slip op. at 4–5 (July 24, 2020).)
  • A social media policy introductory provision prohibiting "inappropriate communications" because employees would reasonably understand when reading the provision in the context of the policy's guidelines individually found lawful that the policy legitimately aimed to protect patient and customer privacy. Prohibiting "inappropriate communications" in this instance was a Boeing Category 1(a) rule.
  • A company information policy prohibiting the sharing of employee compensation information because employees would reasonably read that prohibition in the context of preceding language providing instructions to direct inquiries by persons telephoning the employer about the position and compensation of current or former employees to human resources as a legitimate rule to protect sensitive information and not as a prohibition restricting their right to discuss their wages with each other or to disclose them to a union. The rule was a Boeing Category 1(a) rule.
Member McFerran dissented from those holdings.
The Board panel unanimously adopted an administrative law judge's conclusions that the employer unlawfully maintained rules in its employee handbook and the policies and procedures manual prohibiting employees from:
  • Conducting personal business on company time or property.
  • Soliciting or distributing literature during working hours.
Employers should consider the Board's analysis when drafting or reviewing these types of policies and employee handbooks.

UPDATE

On August 2, 2023, a Board majority adopted a new burden-shifting standard for evaluating facial challenges to employer work rules that do not expressly restrict employees' protected concerted activity under Section 7 of the NLRA, overruling Boeing and the subsequent work rules decisions applying the categorical classification system articulated therein (Stericycle, Inc., 372 N.L.R.B. No. 113 (Aug. 2, 2023); for more information on this decision, see Article, The NLRB's New, Developing Standard for Assessing Lawfulness of Work Rules).