An Administrator's Guide to California Private School Law

Chapter 10 - Privacy Rights Of Students And Employees

Both the NLRB’s May 30, 2012 report and its March 18, 2015 report focus on whether certain social media policies violated the NLRA by being overbroad and thus impermissibly restricting protected activity. 1824 In the March 18, 2015 report, the NLRB provided guidance on what types of policies and rules would be permitted and not permitted under Section 7. For example:  While an employer may not restrict employees from discussing employee information outside of work, it may ban the disclosure of its own confidential information as long as the restriction is narrowly limited.  An employer cannot require employees to be respectful to the company or to managers/ supervisors, it can require employees not to be insubordinate.  An employer can require employees to be respectful to customers or competitors, and direct employees not to engage in unprofessional conduct, as long as it does not prohibit criticism against management or the company.  While an employer may prohibit employees from speaking as official company representatives, it may not prohibit employees from speaking to outsiders on their own behalf. As discussed above, NLRB cases have held that an employer may not prohibit an employee from using Facebook during work time. 1826 The reasoning is that the employee has breaks and is allowed to engage in protected activity during those breaks. An employer may also not prohibit an employee from airing work-related complaints on Facebook or prohibit employees from disclosing salary information. 1827 In a recent decision, the NRLB overruled its prior standard for assessing employers’ handbook policies under the NLRA and created a new test. 1828 The prior standard held that employers violated the NLRA by maintaining workplace policies or rules, even ones that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, as long as the rules would be “reasonably construed” by an employee to prohibit the exercise of NLRA-protected rights. In The Boeing Company 1829 , the Board asserted a new test for determining when a work rule or policy violates the NLRA. The new test is as follows: When evaluating a facially neutral policy or rule that, under a reasonable interpretation, might interfere with NLRA rights, the Board will evaluate two factors: (1) the nature and extent of the potential impact on NLRA rights, and (2) legitimate justifications associated with the rules.  An employer may not prohibit an employee from walking off the job although it may advise that entering or leaving employer property without permission may result in discharge.  An employer may have narrowly tailored conflict of interest rules if their context and examples demonstrate that they are not meant to apply to protected activity (e.g., designed to protect against employee graft, etc.). 1825

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 410