NLRB Continues to Get in Your Face-book

06 May 2013 Labor & Employment Law Perspectives Blog

As employers increasingly utilize electronic technologies such as email, messaging, and social media in all aspects of their business, they have had to develop policies governing the use of these technologies. These policies have come under increasing scrutiny by the NLRB when they either prohibit protected union activity or are ambiguous enough to chill employees’ participation in such protected activities. As we previously mentioned, the NLRB has struck down certain provisions of employer social media policies. Further responding to these concerns, and in order to assist employers in drafting appropriate polices, the NLRB has issued guidance regarding social media policies.

Despite such guidance, the challenges to information technology and social media policies persist. On April 19, 2013, an administrative law judge for the NLRB considered a challenge to three policies promulgated by a hospital system. The three policies were: (1) a nonsolicitation policy; (2) an electronic mail and messaging policy (Email Policy); and (3) an acceptable use policy for information technology resources (IT Use Policy). The administrative law judge upheld the nonsolicitation policy, but struck down the other two policies based on their potential effect on employees’ rights to form or attempt to form a union under Section 7 of the National Labor Relations Act (Act).

The administrative law judge allowed the nonsolicitation policy to stand because it was an absolute restriction on the use of email for any solicitation at the workplace. The decision found that while employees do not have the right to use the employer’s email system for Section 7 purposes, because the use of email was banned for all solicitations, and not just union-related solicitations, this policy was acceptable.

The administrative law judge then turned to the Email Policy, which allowed the use of the employer’s email and messaging system for non-work-related purposes, unless such uses were offensive, disruptive, or harmful to morale. Because certain non-work uses of the systems were permitted, while others were banned, the administrative law judge found the rule was ambiguous and could be understood by employees to prohibit activity protected by the Act. The administrative law judge found this possible interpretation could chill employees’ exercise of their rights. The policy also allowed certain email solicitation of support for groups that were approved by the employer’s management, which the judge found was also banned by the Act because it would have required management approval of union-related solicitations.

The administrative law judge also struck down the IT Use policy, which allowed limited personal use of the employer’s IT resources, but forbade certain conduct, including using social media Web sites to disparage or post false or misleading information about the employer. The administrative law judge found this policy also violated the Act for largely the same reasons that the Email Policy did. Namely, the rule was ambiguous and may chill the employees’ protected activities under the Act.

The ongoing lesson from the NLRB’s continual focus on information technology and social media policies is that companies need to make sure their technology-use policies are clear and are not designed to impact employees’ protected rights. For example, a policy that bans all types of a certain activity, such as workplace solicitation through email, is more likely to be upheld. This of course assumes the employer is applying the policy fairly and consistently. However, policies that allow personal use of electronic resources in some, but not all situations, may be problematic. This is especially true where the policies might be interpreted by employees as prohibiting union-related speech, or where management approval of certain uses is required. Scrutiny of technology-use policies is likely to continue, and it is thus recommended that employers review and possibly revise their own policies in light of such ongoing scrutiny.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services


Episode 3: The Future Powered By Hyperscale Cloud Computing with David Sloan of Microsoft
06 December 2022
Innovative Technology Insights
2023 M&A Outlook
05 December 2022
Foley Ignite
COVID-related Form I-9 Remote Verification Flexibilities Extended Through July 31, 2023
05 December 2022
Labor & Employment Law Perspectives
Learnings from Recent Physician Practice Private Equity Transactions
05 December 2022
Health Care Law Today
What You Should Know About Payor/Provider Convergence
25-26 January 2023
Los Angeles, CA
ATA EDGE2022 Policy Conference | American Telemedicine Association
7-9 December 2022
Washington, D.C.
CLE Weeks
5-16 December 2022
Milwaukee, WI
Foley Sponsors Ernst & Young Entrepreneur of the Year® Program
1 December 2021 - 30 November 2022
Michigan and Northwest Ohio Region