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NLRB: Employers Can Restrict Workers’ Social Media Usage to Protect Company’s Reputation

 

Bemis Company, Inc. - NLRB


Facts:  Bemis Company, Inc. (“Bemis”) had a social media policy in place, as listed in its employee handbook.  The policy provided:

  • Employees are expected to be respectful and professional when using social media tools.  With the rise of websites like Facebook, MySpace, and LinkedIn, the way in which employees can communicate internally and externally continues to evolve.  We expect our employees to exercise judgment in their communications relating to Bemis so as to effectively safeguard the reputation and interests of Bemis.
  • Employees should:
    • Communicate in a respectful and professional manner;
    • Avoid disclosing proprietary information; and
  • Each employee is responsible for respecting the rights of their co-workers and conducting themselves in a manner that does not harass, disrupt, or interfere with another person’s work performance or in a manner that does not create an intimidating, offensive, or hostile work environment.  

An unfair labor practice charge was filed against Bemis on the grounds that this social media policy violated Section 8(a)(1) of the National Labor Relations Act (“NLRA”).  The Administrative Law Judge found that the social media policy did in fact violate the NLRA because it would restrain Bemis’ employees from discussing their working conditions.  The full NLRB subsequently reviewed the Administrative Law Judge’s ruling.

Analysis:  The NLRB pointed out that it has repeatedly held that when analyzing the lawfulness of a work rule (such as the social media policy at issue here), it must refrain from reading particular phrases in isolation.  In the case of this social media policy, the NLRB found that an objectively reasonable employee would understand that the first paragraph of the rule set out a general expectation that was more fully defined by the explanatory language that followed.  When reading the social media policy in its entirety, the rule makes clear that to safeguard the reputation and interests of Bemis, employees that refer to the company on social media must be respectful and professional, not disclose proprietary information, must respect their coworkers, and must not harass, disrupt, or interfere with another person’s work or create an intimidating, offensive, or hostile work environment.

The NLRB reasoned that employees would reasonably understand that adhering to these specific exceptions would support the general expectations described in the social media policy’s first paragraph without risking infringing on an employee’s Section 7 rights to discuss, criticize, or complain about working conditions with coworkers or the public when using social media.  Of note, the social media policy’s goal was to protect the reputation of Bemis.  As a result, the social media policy only concerned communications that could affect the public’s view of the company rather than private conversations among employees.

The Takeaway:  This was a noteworthy decision from the NLRB in which it reversed the Administrative Law Judge’s ruling.  On that note, there are a few things worth pointing out.  For starters, this social media policy concerned public communication about the company.  Bemis was not saying that employees could not talk about their job or the company, in public or private.  (That likely would have been found to be in violation of the NLRA.)  Bemis also was not saying that employees could not talk amongst themselves about their job or the company, in public or private.  (That also likely would have been found to be in violation of the NLRA.)  Rather, the social media policy was put in place to protect the company’s reputation.  As well, Bemis was not stating that employees could not send direct messages (on Twitter, FaceBook, Instagram, etc.) to each other talking about their working conditions.  (That likely would have been found to be in violation of the NLRA.)  Instead, the policy when read in full, was narrowly tailored enough to survive an unfair labor practice charge.

Date:  August 7, 2020

Order:  https://apps.nlrb.gov/link/document.aspx/09031d45831cbab9


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