Federal Administrative Law Judges continue to adjudicate claims brought by the National Labor Relations Board’s general counsel, challenging the legality of employer social media policies. As reported in EmployNews, the NLRB has filed claims against numerous employers, alleging that most attempts to restrict or regulate employee use of social media constitute an unlawful violation of their rights to engage in protected concerted activity under federal labor law. Last month, a federal ALJ rejected the NLRB’s position that portions of a social media policy that cautioned employees to remain civil in their communications was an unlawful infringement of these rights.

 

Landry’s Inc. involved a challenge to the social media policy adopted by the parent to the Bubba Gump Shrimp Co. restaurant chain. The employer’s social medial policy did not attempt to restrict the contents of employee blog or other postings, but stated its expectation that employees act in a civil manner with regard to postings involving other employees. The NLRB admitted that the employer had never used the policy to interfere with concerted activity or employee unionization efforts. Rather, the Board’s counsel claimed that the civility caution could deter employees from posting information regarding terms and conditions of employment out of fear that such information could offend a coworker.

 

The ALJ rejected this contention, concluding that the policy only addressed the manner in which discussion should be conducted, not the content of such postings. As such, the requirement applied a neutral standard with regard to communications of all types. The absence of evidence that the policy was ever used to chill employee discussion of terms and conditions of employment confirmed the non-restrictive nature of this guidance.

 

Other federal ALJs have reached different conclusions with regard to similar policy language. The NLRB general counsel shows no sign of slowing its aggressive approach toward challenging employer social media policies, even in situations where there is no evidence that the policy was intended or used to interfere with employee rights. Employers with social media policies should monitor developments in this area, and revise polices when necessary based on these developing legal standards.