Privacy Issues in the Workplace

The NLRB has recognized the absence of precedent in cases involving “employer rules prohibiting, or disciplining employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter,” and that this absence of clear guidelines may create inconsistent results. 548 Agencies should therefore proceed with caution before disciplining employees for on-line comments. Both 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. 549 In its 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. 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.  An employer may not prohibit employees from using their personal devices to take pictures or recordings at work during non-work time.  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.). 550  An employer can require employees to be respectful to customers or

In addition, a 2013 NLRB case held that an employer may not prohibit an employee from using Facebook during work time. 551 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 or making inflammatory comments. 552 An employee may also use his work email to send a message about a desired change in work conditions as part of protected activity. 553 A 2014 NLRB case has also held that an employer may not have a broadly defined confidentiality and non-disclosure policy that prohibits disparaging statements about the employer or that harm the reputation of the employer, and does not specify the types of disclosures that would be permissible. 554

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 164