NLRB Division of Advice Pans Employer's Instruction Not To Comment on Class Action Lawsuit and Provides Post-Boeing Analysis of Social Media and Other Policies

Practical Law Legal Update w-018-1603 (Approx. 8 pages)

NLRB Division of Advice Pans Employer's Instruction Not To Comment on Class Action Lawsuit and Provides Post-Boeing Analysis of Social Media and Other Policies

by Practical Law Labor & Employment

Uber Technologies, Inc. (Uber)

An employee of Uber filed a lawsuit against the company alleging a failure to compensate employees according to their contracts.

Uber's legal team, on multiple occasions, emailed several employees instructing them not to comment on the suit and that they should contact the in-house attorney if anyone contacted them about it. The plaintiff complained to the attorney that this instruction infringed on employees' rights to discuss compensation. In addition, Uber sent an internal litigation hold and document preservation email to several employees, stating that they must preserve any information in their possession relating to the case. The employee filed unfair labor practice (ULP) charges and was subsequently fired by Uber. The Region determined that the termination was because of the employee's protected concerted activity.

Advice concluded that Uber violated Section 8(a)(1) by directing employees not to comment about the class action lawsuit because:

It was an unlawful directive to refrain from engaging in protected Section 7 activity.
Employees' right to communicate with each other about grievances, grievance remedies, and lawsuits is a major Section 7 interest.
Employees might reasonably infer that the employer's instruction not to discuss the lawsuit or grievance might supersede their handbook passage stating that employees cannot be restricted from discussing compensation.
While the employer has a significant interest in limiting who speaks for the company, the email directive restricted employees' personal speech among each other.

Advice concluded that Uber did not violate Section 8(a)(1) by sending the litigation hold and document preservation email stating that employees must preserve information related to the case. Specifically, Advice reasoned that:

The litigation hold did not explicitly address protected concerted activity but all communication about the plaintiff. This was a facially neutral rule.
Under Boeing, the appropriate analysis, the litigation hold was lawful (365 N.L.R.B. No. 154 (Dec. 14, 2017).
While there was potential for the chilling of protected communications due to the reasonable understanding that the hold included protected communications about the plaintiff, the potential for chilled communications is lessened because the hold did not require the communications to be produced.
Uber had significant legitimate interests in imposing the hold because it is appropriate for an employer to be cautious and comply with legal requirements to preserve any documents that may constitute evidence in litigation.
There was no evidence that employee speech was actually chilled by the litigation hold.

Shelby County Memorial Hospital Association d/b/a Wilson Health (Wilson Health)

Advice assessed whether the following rules and policies violated Section 8(a)(1) of the NLRA because they are unlawfully overbroad:

A "Commitment to My Co-workers" document, as well as whether:
- requiring employees to sign this document violated Section 8(a)(1); and
- terminating an employee for refusing to sign the document violated Section 8(a)(1).
A prohibition on making disparaging comments online about the employer.
A prohibition on the use of the employer's electronic communication systems.
A restriction on speaking on behalf of the employer on social media.
A prohibition on sharing confidential information online.
A ban on the use of cellphone cameras.

Using the Boeing analysis, Advice evaluated:

The nature and extent of the rule's impact on Section 7 rights.
Legitimate business justifications associated with the requirements of the rule.
Determined whether a rule:
- was lawful to maintain;
- was unlawful to maintain; or
- warranted individualized scrutiny.
(365 N.L.R.B. No. 154, slip op. 2-3 (Dec. 14, 2017).)

"Commitment to My Co-Workers" Document

Wilson Health emailed employees a "Commitment to My Co-workers" document geared towards reminding employees of their mutual accountability for one another and ensuring that work issues are properly communicated despite animosity between coworkers.

Advice concluded that:

The "Commitment to My Co-workers" document was a lawful civility policy, as was the employer's request that employees sign the document. Specifically:
- employers may maintain rules that require harmonious relationships in the workplace;
- any adverse effect was slight compared to the standards of civility; and
- a regulation on what employees say about their co-workers does not have as significant an impact on Section 7 activity as a regulation about what they can say about the employer.

"Policy 47 – Privacy

1. E-mail, Internet, blogs and voice mail are to be used only for [Employer] business purposes and not personal ones."

Advice concluded that this prohibition on the use of the employer's email system was unlawfully overbroad and violated Section 8(a)(1), reasoning that:

In Purple Communications, the Board adopted a presumption that "employees who have rightful access to their employer's email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time."
An employer must demonstrate special circumstances to justify a ban on employees' non-work use of email, including Section 7 use on non-working time, necessary to maintain discipline or production.
Wilson Health provided employees with access to its email system as part of their work, so a total ban on personal use of its email system extending to non-working time, violates Section 8(a)(1) under Purple Communications.
(361 N.L.R.B. No. 126, slip op. at 1063, 1050 (Dec. 11, 2014).)

UPDATE: On December 16, 2019, in Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, the Board overruled Purple Communications, Inc. (368 N.L.R.B. No. 143 (Dec. 16, 2019); see Legal Update, NLRB Restores Employers' Right to Restrict Use of Email).

"Blogging outside of the hospital must not include . . . disparaging comments about the hospital."

Advice concluded that this prohibition on making disparaging comments online about the employer was unlawfully overbroad and violated Section 8(a)(1), reasoning that:

Concerted criticism of employment and compensation practices is central to guaranteed NLRA rights. A general rule prohibiting disparagement of the employer significantly impacts NLRA rights and could:
- cause employees to refrain from publicly criticizing employment problems; and
- squash the protected concerted activity for improved work conditions.
An employer's concern about reputational damage from criticism does not outweigh NLRA rights undermined by a ban on disparaging the employer.
(See Richboro Community Mental Health Council, 242 N.L.R.B. 1267, 1267-68 (1979); Teletech Holdings, Inc., 342 N.L.R.B. 924, 931-32 (2004).)

C. Policy 62 – Social Media

1. Do Not Refer to [the Employer] When Posting – If employees choose to post online, they must speak as individuals and not speak on behalf of the [E]mployer. Employees must identify themselves using the first person singular. Any online activity relating to or impacting the [E]mployer must be accompanied by a disclaimer such as: 'The views expressed on this site are my own and not those of [the Employer].' This disclaimer must be visible and easy to understand.

Employees Are NOT Authorized to Speak on Behalf of the Employer, Unless Explicitly Given Permission – If employees seek to establish an account identifying the [E]mployer or sharing information about the [E]mployer, employees must obtain approval from the Marketing and Public Relations Department. Employees cannot display the [E]mployer's logo or attempt to represent the [E]mployer without obtaining explicit written approval from the [E]mployer.

Advice concluded that a rule restricting employees from speaking on behalf of the employer or attempting to represent the employer online on social media was lawful because:

Employers have significant interest in requiring that only authorized individuals speak for the company, so employers may have rules ensuring that employees do not make statements that can be interpreted as coming from the company, as long as it is not a total ban on use of the company name (see UPMC, 362 N.L.R.B. No. 191, slip op at 14 n.17 (August 27, 2015)).
The employer's rule was not a total ban and would reasonably be read to only restrict employees from speaking on behalf of the employer without permission when posting online.
Similarly, it is lawful to prohibit employee use of the employer's logo. Most employees will understand this rule as protecting the employer's intellectual property from commercial and other non-Section 7 related use.

"Do Not Post Confidential Information – Employees must always protect the confidential information of patients, co-workers or other employees. Employees must make sure that online postings do not violate any non-disclosure obligations, HIPAA, privacy or other confidentiality obligations. Employees may not share any confidential or proprietary information about the [E]mployer or the [E]mployer's finances, business strategy, or any other information that has not been publically [sic] released by the [E]mployer."

Advice concluded that the rule prohibiting sharing confidential information online was lawful because:

The vast majority of conduct affected by rules prohibiting disclosure of customer information and trade or business secrets is unrelated to Section 7 (see Schwan's Home Service, 364 N.L.R.B. No. 20, slip op. at 16 (June 10, 2016); Super K-Mart, 330 N.L.R.B. 263, 263 (1999)).
General prohibitions in this rule about the disclosure of "confidential information of …coworkers or other employees" and the disclosure of "any other information that has not been publicly released" are lawful, as employees would not reasonably read this rule as prohibiting employees from disclosing information about wages and working conditions with their union or coworkers.
The rule mentions HIPAA and the employer's proprietary information regarding finances and business strategy, making it clear that the rule is primarily directed at private medical information and the employer's business secrets. In a hospital setting, the critical importance of confidentiality and health care privacy outweighs the impact on employees' Section 7 activity (see Long Island Association for AIDS Care, Inc., 364 N.L.R.B. No. 28, slip op. at 1 n. 5 (June 14, 2016)).

Policy A – Appropriate Telephone/Cellular Telephone Usage

The use of cellular telephones is prohibited for all [Employer] employees unless during scheduled breaks and they should only use them in their respective lounges and/or designated break areas.

The use of cellular cameras is prohibited to ensure HIPAA compliance.

Advice concluded that the rule banning the use of cellphone cameras was lawful, reasoning that:

In Boeing, the Board determined that no-photography rules have little impact on NLRA-protected rights, since photography is not central to protected concerted activity.
Employers have significant interest in limiting photography on their property because of concerns about security, avoiding legal liability, protecting property and proprietary, confidential, and customer information, and maintaining the integrity of their operation.
(See Legal Update, NLRB Establishes New Standard Governing Workplace Policies and Upholds No-Camera Policy.)

NLRB Division of Advice Pans Employer's Instruction Not To Comment on Class Action Lawsuit and Provides Post-Boeing Analysis of Social Media and Other Policies | Practical Law