Under Section 7 of the National Labor Relations Act (NLRA), all employees have a right to engage in protected concerted activity, even if they are not unionized. Such activities include those performed for the mutual aid or protection of all employees, such as discussing the terms and conditions of employment. An employer is prohibited by the Act from interfering with, restraining or coercing employees from exercising their Section 7 rights. In the past decade, there have been a number of important cases decided by the National Labor Relations Board (NLRB), the agency that protects the rights of employees to join together and improve wage and working conditions, that impact social media policies. In fact, many of the decisions have struck down social media policies as unenforceable under the NLRA. If any provision in a social media policy is vague or overbroad and can be read as restricting activities protected by Section 7, that provision will likely be found unlawful and unenforceable by the NLRB.
Even seemingly innocuous provisions prohibiting profane language or harassment may be found in violation of the NLRA if it restricts protected activity under Section 7. These so-called civility rules were addressed in a prior 2004 NLRB case, Martin Luther Mem’l Home, Inc., dba Lutheran Heritage Village-Livonia, 343 NLRB 646, which established the Lutheran Heritage standard. The standard provides that an employer’s civility rules are unlawful if they explicitly restrict activities protected by Section 7 of the NLRA. Even if a rule does not explicitly restrict protected activities, it may still violate the NLRA if one of the following can be shown: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.
In years following Lutheran Heritage, the Board relied on Lutheran Heritage’s “reasonably construe” standard to invalidate numerous neutral work rules such that practically every U.S. employer was placed at risk of being found to be in violation of the NLRA by virtue of the wording found in their employment agreements, employee handbooks and work rules. However, in the recent December 2017 decision in The Boeing Company, 365 NLRB No. 154, the majority articulated a new test for addressing the facial validity of work rules, overturning Lutheran Heritage. In doing so, the majority stated that “[t]hough well-intentioned, the Lutheran Heritage standard prevents the board from giving meaningful consideration to the real-world ‘complexities’ associated with many employment policies, work rules and handbook provisions.”
In upholding the validity of Boeing’s no-camera policy that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and approved permit, the Board issued the new standard, emphasizing the importance and duty to strike the proper balance between asserted business justifications and encroachment on employee rights. Per the new test, in evaluating any facially neutral work rule that, when reasonably interpreted, would potentially interfere with the exercise of Section 7 rights, the Board will now evaluate two items when assessing the facial validity of work rule language: (1) the nature and extent of the rule’s potential impact on NLRA rules and (2) an employer’s legitimate justification associated with the rule.
The Boeing Board identified three categories of work rules that would likely result from the new balancing test:
- Category 1 will include rules that the Board designates to be facially lawful either because (i) the rule, when reasonably interpreted does not prohibit or interfere with the exercise of NLRA rights or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules include the no-camera in the workplace rule at issue in Boeing as well as rules requiring “harmonious interactions and relationships” and other similar rules calling for employees to abide by basic standards of civility.
- Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
- Category 3 will include those rules that the Board will designate as unlawful because they would prohibit or limit NLRA-protected conduct and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. As one example of such a rule, the Boeing Board cited a rule that prohibited employees from discussing wages or benefits with one another.
While Boeing provides much needed clarity and balance to the analysis, employers still need to regularly assess their work rules, including those laid out in social media policies, to ensure that such rules fall into Category 1 or, should they fall into Category 2, have legitimate justifications. It is important to recognize that while the maintenance of particular rules may be lawful, the Board held that the application of such rules to employees who have engaged in NLRA-protected conduct may nonetheless violate the Act, depending on the particular circumstances presented in a given case.