Employer Policy Prohibiting Social Media Use During Company Time Violates the NLRA

Kollman & Saucier
Kollman & Saucier

The NLRB keeps at it and tells us, once again, that social media policies are almost never going to pass any smell test.  An administrative law judge for the Board issued another decision that seemingly binds the hands of employers who seek to keep their employee productive and focused on work during work time.  In ECHOSTAR, Inc., No. 27-CA-066726 (ALJ Anderson, Sept. 20, 2012),  the ALJ ruled that EchoStar Technologies’ social media policy that prohibited employees from using social media during company time unlawfully interfered with an employee’s rights under the National Labor Relations Act.  Relying on the Costco Wholesale Corp. decision, which we blogged about a few days ago, the ALJ also struck down language which prohibited employees from making “disparaging” comments on social media.  There were several other portions of the policy that the ALJ also struck down, including language that regulated contact with the media, communication with the government, disclosure of company investigations, and an insubordination rule.

Focusing on the “no Facebook during work” rule, the policy banned employees from participating in social media activities “with EchoStar resources and/or on Company time.”  An employee challenged the rule and the NLRB jumped in and brought suit on behalf of the employee.  As is always the case with the social media policies and the NLRA, the question is whether “a reasonable employee” would view the language or policy at issue as chilling his or her Section 7 activities (the right to engage in protected concerted activities).

Restating the issue philosophically, the ALJ asked whether an employee’s Section 7 rights “suffered a reduction or inhibition” and whether, objectively, an employee would so react to the rule (and not whether the employees involved actually felt threatened).  Although the decision did not provide the ALJ’s specific analysis of why the portion of the rule prohibiting the use of social media on company time violated the NLRA, he affirmatively stated the rule needed to be removed from the handbook.  The ALJ likely was persuaded by the General Counsel’s argument that the policy did not make clear that the phrase “company time” would exclude breaks, lunch and before or after work.  So, while company time means company time, in the context of social media policies under NLRB scrutiny, that no longer will be the case.

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