On Tuesday, just weeks after the National Labor Relations Board issued its first decision on an employer’s social media policy in Costco Wholesale Corp., an administrative law judge joined in the Board’s efforts to scrutinize employment policies under Section 7 of the National Labor Relations Act, the section that protects employees’ rights to engage in concerted activities. In EchoStar Technologies, 27-CA-066726 (Sept. 25, 2012), the judge invalidated and addressed several social media and employment policies that are commonly used by employers, including:
Insufficient Savings Clauses. EchoStar argued that its policies were narrowed by statements in its handbook instructing employees to “contact the Human Resource Department” if they had any questions and to “[u]se your good judgment.” The judge rejected these arguments, finding that the statements were insufficient to notify employees that the policies did not apply to Section 7 protected activities. In Costco, the NLRB suggested that specific clauses carving out Section 7 rights combined with more tailored policies might be sufficient to make otherwise noncompliant policies compliant with the NLRA. (See our Alert from Sept. 21 for more information about Costco.)
EchoStar is particularly troublesome because it struck down many policies that are commonly used by unionized and non-unionized employers alike. Given the NLRB’s recent efforts, it would be wise for employers to take time to carefully review their policies and rules to ensure that prohibitions on employee conduct, especially online and social media activity, are tailored to comply with the NLRB’s recent directives and decisions.
— Wade Davis is a shareholder in Leonard, Street and Deinard’s Mankato, Minnesota office where his practice focuses on litigating and resolving business and employment disputes, and advising employers in employment-related matters. Wade is a member of the firm’s Labor and Employment Group and is a MSBA Certified Labor and Employment Law Specialist. He regularly defends employers against claims of sexual harassment, and age, gender, race, disability and religious discrimination.
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Posted in Advice for Employers, Retention Strategies, Social Media, Workplace Problems | Tagged Tagged attorney, confidentiality, costco wholesale, echostar, echostar technologies, employment policies, Facebook, insubordination policy, insufficient savings clause, internal investigations policy, lawyer, leonard, linkedin, media policy, national labor relations act, national labor relations board, nlrb, non-defamation, non-disparagement, street & deinard, twitter, wade davis
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