The NLRB has issued its first decisions concerning protected, concerted activity and social media and overly broad restrictions on social media. The decisions reflect the Board's operating premise that employees who are sophisticated enough to master smart technology and social media cannot understand the scope of employer policies addressing such topics as being courteous to customers or prohibiting disparaging comments about customers or other employees and would believe that such rules to prohibit engaging in Section 7 protected, concerted activity.
The cases focus on the message but not the medium by which the message is transmitted. In other words, the cases have not focused on the issue of the technology used to engage in the protected, concerted activity. There are two ways to communicate: use the employer's technology or use the employee's own smart technology. In Echostar Technologies, LLC, the General Counsel made the argument that the "new forum" of social media combined with the "incredible mobility" of smart phones
allows employee to to engage in social media activities without the need to use the employer's computers or internet connections. As a result, employees are entitled to engage in social media activities during breaks and after work in non-work areas just as they may engage in other types of Section 7 protected, concerted activity.
Does this argument mean that company technology is no longer relevant as an issue? Hardly. Employers need to understand the current Board position and the likely changes will occur with an Obama Board in a second Obama administration. The current standard on use of email is found in the Bush Board's decision in Register Guard which was decided in 2007. Although the D. C. Circuit did not uphold the Board's decision that the rule was not discriminatorily enforced, the union did not seek review of the holding that a policy prohibiting email use for all non-job-related solicitations. On remand, the Board did not consider this issue.
The policy at issue provided that the communications system was not to be used to solicit or to proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations. The Board majority held that an employer may prohibit employees from using its email system for non work related solicitations, including union solicitations. An email system is comparable to other employer communications equipment which may be restricted. An employer has a property right to regulate or to restrict use to preserve server space; to protect against viruses; and to avoid liability for inappropriate emails.
The dissent strongly disagreed and gave a preview of what would be expected from the Obama Board. Member Liebman called the NLRB the "Rip Van Winkle" of governmental agencies and stated that only an agency that had been asleep for 20 years could argue that an email system is a piece of communication equipment to be treated like a bulletin board. Rather, a complete ban on all non work related use should be viewed as presumptively unlawful unless the employer is able to prove special circumstances to warrant a complete ban.
If the Obama Board returns to five members and revisits this issue, one can assume that the dissent in the original decision will become the new rule and non work related emails cannot be banned without proving "special circumstances' which will, of course, be determined by an ALJ or a Board panel. Employers need to review with the IT department the use and impact of current email. It may well be that the advent of personal smart technology makes the issue less important than it was in 2007. Nevertheless, if employees can use company email, it is the most effective way to reach all employees, especially in a union organizing context.
Apart from the nightmare of trying to enforce a total ban on non work related email, that exercise may not be enough. The employer would have to prove the "special circumstances" of the negative impact such use has on the system. The impact must be specific and not based on assumptions or projections, as determined by a Board that views email as another means of communicating.
The current Board seeks to extend the boundaries of protected, concerted activity and has found numerous employer policies regulating employee conduct to "chill" Section 7 rights. It is only a matter of time and the outcome of the Presidential election before the use of company email and limits placed on non work related solicitations receives the Board's attention.