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F A L L 2 0 1 3
activity." Employees could "reasonably"
conclude that the policy prohibited them
from protesting Costco's treatment of its
employees, particularly since it included
no language excluding protected com-
The NLRB further explained that
where a challenged policy does not
explicitly restrict Section 7 rights (as in
Costco), the violation is dependent upon
showing: (1) employees would reason-
ably construe the language to prohibit
Section 7 activity; (2) the rule was pro-
mulgated in response to union activity; or
(3) the rule had been applied to restrict
the exercise of Section 7 rights.
Karl Knauz Motors, Inc.
, the
employee of a BMW dealership was
terminated after posting photos of a car
accident at his employer's neighboring
dealership to his Facebook page with the
caption: "This is your car. This is your
car on drugs." The NLRB agreed with
the ALJ's finding that the posts were not
protected, but rather "a lark," that was
neither a communication with a coworker
nor related to any term of employment.
The ALJ did rule, however, that later
posts of photos of what the employee and
a coworker discussed as "cheap refresh-
ments" served at a promotional event
were protected because they were part
of an employee discussion and related
to compensation. The NLRB did not
address these latter posts, because the
employee was terminated solely due to
unprotected activity.
Decisions in Hispanics United (unlaw-
ful discharge for Facebook conversation
employer considered "bullying conduct")
and Design Technology Group (unlawful
termination for Facebook "protest" about
working late hours in unsafe neighbor-
hood) followed in December 2012 and
April 2013, respectively.
These four
rulings suggest the NLRB takes a broad
view of what constitutes protected social
media activity considering it the modern-
day equivalent of "water cooler" speech.
What's "Unlawful"?
The Reports, although not as weighty as
coupled with the NLRB
rulings provide some direction when
drafting a policy. A full discussion of
their analyses is beyond the scope of this
writing, but some key general principles
The NLRB inquiry is fact-spe-
cific, but employers should consider the
following examples of policies deemed
unlawful because "overly broad" and
potentially "chilling" to an employee's
right to engage in protected speech:
1. "Blanket" bans prohibiting:
a. Derogatory remarks about em-
ployer, coworkers, customers or
b. Posts that damage or defame the
company or an individual.
c. Posting "anything you wouldn't
want your supervisor to see" or
"inappropriate" photos of em-
ployer or coworkers.
d. Contact with the media or govern-
ment agencies (or requiring pre-
e. Disclosure of "confidential" infor-
mation (if wage, payroll or contact
information is included).
f. Posting any material non-public
g. Use of employer logos and images
of store or product without autho-
2. Requiring:
a. Employees to obtain approval
before identifying themselves as
employees or to attach disclaimers
to personal posts.
b. Confidentiality regarding internal
employee investigations.
c. Posts to be "accurate".
3. "Courtesy" provisions "never be
4. "Zero tolerance" policy for bullying.
5. Suggesting use of "Open Door" policy
rather than social media.
6. "Use Good Judgment about What You
Share and How You Share" policies.