After Hours

The NLRB rules against company despite it having a social media policy

Have you got a rock-solid social media policy that you're proud of? What if I told you that that policy might be an unlawful infringement on your employees' rights?

Have you got a rock-solid social media policy that you're proud of? What if I told you that that policy might be an unlawful infringement on your employees' rights?

Yep, the very thing we were telling you a few months ago you needed in order to defend against fired employee lawsuits might now be committing an unfair labor practice in and of itself.

Last week, a National Labor Relations Board administrative law judge ruled against Dish Network in a case brought about by a member of the Communication Workers of America union.

The underlying charges were filed by the Communication Workers of America was that Dish Network violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act by maintaining various policies in its Employee Handbook, which violated employees' rights.

In particular, the ruling found that the company's Social Media policy was unlawful on two grounds. First, it banned employees from making "disparaging or defamatory comments about DISH Network." The Board held that analogous electronic limitations on negative commentary violated the Act.

Second, the policy banned employees from engaging in negative electronic discussion during "Company time." The Board has found that equivalent rules,

...which ban union activities during "Company time" are presumptively invalid because they fail to clearly convey that solicitation can still occur during breaks and other non-working hours at the enterprise.

At the heart of this case was whether the company would have reacted the same way toward an ununionized employee who was speaking negatively about the employer on company time. Dish was unable to prove that they would have.

About

Toni Bowers is Managing Editor of TechRepublic and is the award-winning blogger of the Career Management blog. She has edited newsletters, books, and web sites pertaining to software, IT career, and IT management issues.

41 comments
g01d4
g01d4

The body states the issue is not the policy per se but whether non-union employees are being treated in the same manner. Ununionized?

JohnMcGrew
JohnMcGrew

So it's now officially possible to publicly disrespect your employer and expect to maintain a career with that employer. I've never considered telling my employer to their face that they're a moron a good career move. Doing it online is little better, only more gutless. "Freedom of Speech" never implied "Freedom from consequences", I guess until now.

Deadly Ernest
Deadly Ernest

use of company assets for non-company activities as they aren't allowed to put in policies to allow the safe use of such equipment. Today many companies allow staff access to the Internet and other stuff as an amenity to staff. well, this ruling really says that companies are not allowed to set rules about how staff use social media while at work. So the answer is to deny the access to such services at work. limit the use of the Internet to only those staff who have a need to use it for work activities, and then block sites that don't relate to work activities. If people can't get to the social media sites with work equipment there's little chance they will make any adverse comments during working hours. Thus no need for a policy.

Snak
Snak

In the UK, the Unions have in the past, brought the country to its knees over the most puerile of arguments. Their power was smashed in the 1980's by the evil Mrs Thatcher, but even she could not obliterate them. This is a good thing. I am not in a union, due to a falling out many years ago, but this does not mean that I am anti-union. I am definitely against unions being capable of causing nationwide chaos, but equally I feel that some restraints need to be in place to curb management abuse of people. In a capitalist country, the unions are often the only organisations with the clout to stop virtual slavery, employee intimidation and downright cruelty by management bent on 'bonus at any cost'. People have the capacity to be evil. Management have the power. Some form of restraint is necessary. There are always two sides and circumstance determines which side you're on. From a management perspective, unions can be evil, and from a worker's perspective, management can be evil. For any semblance of fairness, we need both.

tiredofthecrap
tiredofthecrap

Just another example of obama's unions and his nlrb at nwork

Vinster1
Vinster1

Employers have trampled workers' rights for far too long. It's about time someone slapped them down for it. There must be a balanced approach, and we've not had one in the US in recent decades. Many thanks to the NLRB.

Charles Bundy
Charles Bundy

but the decision text doesn't make implied distinction between non-union versus union on that issue. So I'm not certain where Toni got that bit of info.

Deadly Ernest
Deadly Ernest

hit by it so far seems to be a union guy, so there is no evidence of it having been used against a non-union guy yet. Since they can't prove they'd treat a non-union guy the same due to not having caught one yet, the idiot judges said stuffa youa.

HypnoToad72
HypnoToad72

A person who works in good faith should have the simple freedom to criticize, maturely, any grievances... Now, the fun part is, in a decaying economy, if everybody aired their grievances and then quit, what would happen next? Why or why not would you believe your answer to that?

Charles Bundy
Charles Bundy

Saying - My boss is an ass because he yelled at me and My boss is an ass because he ignored safety rules when they suited him. This case was about the latter, not the former.

Charles Bundy
Charles Bundy

The US law in question deals with the right of employees to organize and protect their interests (e.g. unsafe working conditions, unfair pay practices, et-al). Towards this end they must be allowed to communicate. They may form unions if management is not willing to participate in those discussions, but that isn't a mandate of the code. Thus the limitations placed on their ability to communicate violate the law, not the use of company resources towards that end. It would be just as illegal if the company attempted to limit negative commentary using pencil and paper versus bits. If DISH network had said something like [i]You can't send nude pictures via our e-mail system[/i] the ruling would have been in their favor. Carte Blanche [i]you can't criticize us electronically[/i] impacts the employees ability to discuss working conditions. On a side note many US companies have policies saying you can't discuss salary with other employees. That too violates code with regards to unfair pay practices (e.g. gender discrimination)

bob44dotcom
bob44dotcom

@Earnst: Employees often opt to access social media through their phones while at work, not their PCs, so to circumvent any possible Internet surf "issues" tied to agreements with their company. Phones offer plenty of convenience and access to use, without the easy traceability of using a company's network. And while many workplaces have phone-use policies in place, phones are a less-salient and more difficult for management to track. (If not witnessed first-hand or on camera by supervision, work productivity report compilation is required--work lazy or over-worked managers don't do). While I've implied that some at work are using company time for Social Media (regardless of what they're posting), that's not a completely fair treatment: Some comply and save posts for breaks or lunch. At that point, the issue falls back to First Amendment rights. As individuals or employees, we have the right to say what we wish--but we also face costs for our actions. Companies don't take kindly to dissenters, and have the leverage to take--and get away with--various actions (including quick disposal of employees) to protect their PR image. Translated: Tweeters beware!

jeb.hoge
jeb.hoge

The proliferation of mobile devices that run on their own data services pretty much kills the idea of companies restricting access to social media or other sites. This genie is out of the bottle. It's a management issue, and as such, it's also incumbent upon management to provide a working environment that wouldn't spur negative commentary in the first place.

Deadly Ernest
Deadly Ernest

company equipment and / or working on company paid time. Since when does anyone have a right to use company time to go to web sites that have nothing to do with their work or the company to make adverse comments about the company. The company had allowed access as an extra benefit to staff. All this does is now force the company to remove that access and benefit because one person decided to be a rectum about it. There is nothing that requires the company to give you Internet access for personal use. Since they now aren't allowed to set in place policies to see such use is not abused on company time, then they now need to stop providing this extra access to protect themselves against future law suits. Back in the mid 1990s there were a couple of serious court cases where staff used corporate emails to make comments about other companies in what they thought were private discussion. They were not senior staff who set policy, but the courts still found the companies liable for the abusive comments because they were on the corporate equipment. Thus it's clear a company should NOT be allowing anyone to use their equipment to make negative comments about anyone. Now we have the US NLRB saying policies limiting their free speech aren't allowed. Simple answer, as I said before, don't allow ANY corporate equipment to be used for non work activities - no other policy is then needed.

Charles Bundy
Charles Bundy

How about a relevant discussion on 29 USC 157 the right to organize (not just unionize). Of course knee-jerk political one liners get more attention. (See I've fallen into the trap!)

Charles Bundy
Charles Bundy

Is it that said system gave workers a win in this case?

HypnoToad72
HypnoToad72

Even I would have to strain emotional and intellectual maturity at some point. As a boss, I would not mind if an employee was mature in bringing up concerns. Everybody is so pinned by their pigeonholed duties and the chain of command, regardless if it's benign or oppressive or anything in between, that nobody cares any longer...

Deadly Ernest
Deadly Ernest

company on a social media website while on company time. First, they have NO right to be on a social media website while on company time, so why is it an issue that they aren't allowed to say anything bad until after they leave work? The matter is nothing to do with unionising or discussing union rules at all, but about making adverse comments on a public forum that's nothing to do with your work on company time.

michaellashinsky
michaellashinsky

The First Amendment only says that the Gov't cannot censor you. Your arrangement with your employer is a private agreement. You bad mouth him, he can fire you for it. He cannot stop you from stating your opinions, but he doesn't have to continue employing you either. But, as I understand it, discussing anything union related is allowable on company time. (IMHO, if an employee is spending so much time debating union rules and griping about the boss that they don't get their work done, that isn't right either. I want things to be fair on both sides. I am pro-union, but sometimes unions take things too far, and every job has that one or two guys that always gripe and never work. That isn't good for the employer, the other workers, or the customers.)

Charles Bundy
Charles Bundy

policy? Or the device in question is one with the corporate WiFi?

Deadly Ernest
Deadly Ernest

comment about anything, especially if their ideas aren't the ones carried out by the company.

Deadly Ernest
Deadly Ernest

the company equipment. The only thing that comes into play then is the misuse of company time for personal purposes which has a well established set of precedents to allow them to come down on you about it. However, I do know of one organisation that has a few special items of equipment set up around their building that ensure no usable wi-fi signal is received inside the building. It's one of their security measures to ensure people don't use wi-fi to send out restricted access corporate data. If you want to use a mobile phone you have to leave the building and walk about twenty-five feet away from it, and that's noticeable.

Deadly Ernest
Deadly Ernest

any legislation is open to interpretation by the current judge. So what is important about deciding how much of a political decision this is you need to know when the judge or judges were appointed and who put them there.

Deadly Ernest
Deadly Ernest

one job I often had was in interpreting law to write the policy in accordance with it, and another was in interpreting policy to see procedures were in accordance with it. Both very similar, but slightly different. Until I see the actual DISH policy I have to go with what's in the judgement and it shows the policy as stating "unless authorised to do so you may not participate on company time" then goes on about the other stuff. Since the authorisation is first it has primacy, then next is the company time, and the rest is stated after that without showing as a new primary or secondary level matter, and thus in third place with the other two in power over them. Another point is that the judge's conclusion item 3 on page 12 is wrong in light of the actual policy as shown in the judgement as he claims they can't use social media on their own time while the stated policy states on company time. Unless he failed to include relevant parts of the policy in the judgement, in which case he screwed up.

Charles Bundy
Charles Bundy

drafting policy in another life as a public service manager. What you see as clear is incorrect. So let me lay the social media policy out in three parts for you - 1) Only authorized people may use social media to represent DISH. (24/7) 2) You may not say anything negative about DISH using social media. (24/7) 3) To use social media during work hours or on work equipment requires authorization. (8/5) Part 1 & Part 3 are not the same authorization. Parts 1 & 2 have no time frame specified hence 24/7. This discussion has sort of reached rock bottom at this point, so I'm done. Make of it what you will...

Deadly Ernest
Deadly Ernest

However, from the material in the policy quoted one of the criteria listed as being applicable to the policy on contact with the media clearly states: quote Unless you are specifically authorized to do so, you may not - Participate in these activities with DISH Network resources and/or on Company time . . . . end quote making it clear it only applies whilst on the company clock - any talk with outside media or sources outside on your own time and in a manner where you make it clear you are NOT representing the company is NOT restricted by the policy. This ruling is very insidious as anyone standing before the media on corporate clothing making a statement of any sort is seen by most courts as being a representative of the company and thus the company management can and will be held liable for what they say. That approach is taken with regards to the supervisor who doesn't take the safety rules seriously all the time, the senior management who didn't do the evaluations are being held accountable for it because the one who didn't do it right is seen as their representative and acting as they want. then on the next issue they're allowing anyone to appear to make media comments because they say the policy saying you can't make media comments on company time is not valid. At this point in time I only have access to the snippet of the policy on the decision, but the way that reads the whole business about contact is restricted by the caveat I quote above about not making any such contacts while on company time unless duly authorised to do sop. It places no 24/7 limitation or restriction on non-company time. If you get a copy of the full policy, I'd like to see it to see if it changes the way the presentation here reads.

Charles Bundy
Charles Bundy

In which DISH network tries to use the broad term "social media" to limit employees ability to communicate? That is what this is about. You can't organize if you can't communicate. And typically things ain't rosy if you are contemplating organizing. Hence DISH violated the law. No judicial interpretation, the judge even referenced prior precedent. If you look at what is considered "Social Media" it is an aggregation platform for communicating, which covers everything from e-mail to Facebook to YouTube and [b]mobile[/b] systems like Skype. Surely you can see how this would limit the ability of the employee to organize. I could go along with you if this was just an at-work [b]specific [/b] resource utilization issue, but it [b]isn't[/b]. The handbook quoted above doesn't say "on company time". It says folks can't use electronic means to communicate negative info about the company 24/7. This could include negative info about how equipment safety systems were being turned off to continue production ala Deep Water Horizon. People died there, and I bet British Petroleum had a similar communication policy...

Deadly Ernest
Deadly Ernest

rest of what they raised. However, read the bottom of page 6 and the top of page 7 of the judgement about what the judges are commenting about - the one policy part that seems to get by them is the bit: quote You may not make disparaging or defamatory comments about DISH Network, its employees, officers, directors, vendors, customers, partners, affiliates or our, or their, products/services. . . . Unless you are specifically authorized to do so, you may not - Participate in these activities with DISH Network resources and/or on Company time . . . . end quote How the hell the board sees someone making disparaging remarks on social media the same as union activities is very interesting. They then go on to say that the company has no right to limit employees talking to the media on company time as limiting their ability to get outside help, when such talks can be held on the employees own time is also an interesting piece of crap. I still say the employees have not right to be on social media during company time.

Charles Bundy
Charles Bundy

The whole damn thing was a union represented list of grievances by employees of which DISH network's employee handbook social media text was about 1 out of 4 concerns. Look I live here and by golly I at least read the judicial decisions before posting nonsense. Try it - http://1.usa.gov/QXiZdc

michaellashinsky
michaellashinsky

As I understand it, the First Amendment only applies to Gov't censorship. Any leverage anyone else may or may not have on you is not covered in the amendment. As far as tax breaks, subsidies, etc..., they are not served up with any clauses nationalizing the business in question, in part or in whole. Maybe they "should" be, but there is that word again... Thanks to everyone who participated in this discussion. This was a FUN one!

SKDTech
SKDTech

Personally I am against any government subsidy of private industry as it causes more problems than it solves. However, providing tax-breaks, subsidies, contracts, entitlements, etc. does not make a private organization, regardless of size, a part of the government or subject to restrictions specifically placed upon the government. The government is not allowed to censor private individuals from speaking their minds. Private organizations are not subject to that though and may fire or discipline employees that speak or act in ways that are detrimental to the organization.

HypnoToad72
HypnoToad72

A company should operate within the laws and beliefs of the country it resides in and benefits from. Especially if the government gives it taxpayer-funded subsidy, tax breaks, or tax cuts. If there is a line between private and public venues, then no company should be given any entitlements, and given how long most companies have been given entitlements, there are any number of conclusions or possibilities that can be fathomed. Having said that, I agree with you - I want things to be fair on both sides as well. Unfortunately, they never are - thank both sides...

michaellashinsky
michaellashinsky

Hey, Thanks for the great answers! I didn't realize Ernest was in AU, so all my legal rambling is not relevant. (Typical American, forgets the world extends beyond the USA. HA HA. I would love to visit AU sometime! Amazing place with great people. It is on my bucket list.) This is what the forums are for, not for those clowns that always rant about which company is more evil, M$ or A$$pl.

Deadly Ernest
Deadly Ernest

as any radio signal can be affected by any powerful electromagnetic motor. Ever seen a TV lose reception because the guy next door was using a powerful electric drill or the like? Or lose the car radio signal near major power lines? Yet that sort of short range interference is NOT seen as signal jamming. I know in a military sense a signal is usually not seen as jammed unless it can not be received beyond the jamming device at all. Thus I wonder how a small localised effect would be seen under the law.

Charles Bundy
Charles Bundy

Thus his surety is of no consequence to us in the US of A. Here it is a violation to operate radio equipment for the express use of jamming signals. Hell it's illegal to operate equipment within certain power/bands w/o license even if your intent isn't to impede transmission! :)

Deadly Ernest
Deadly Ernest

1. The buildings concerned are all fifty feet or more inside the boundary fence and on private property. 2. The place involved is here in Australia and we have laws about interfering with the communications systems themselves. However, jamming them to stop access to private property is seen as a privacy issue and no interference with the communications system as they work perfectly once you're off the property or near it's edge. The matter hasn't been tested in court yet, but one legal opinion I saw made it clear it was legal as the laws here require either owner approval or a court order to establish any communications equipment on private property, this has usually been seen as towers or cables in the past. But the argument can be made a radio signal is no different to a signal on a cable and as long as the signal isn't totally blocked from reaching the other properties beyond yours, then it's not being interfered with, just being refused access to your property. It's based on that opinion that they have transmitters that mess up the signal for only thirty feet as the units are installed partway up the building so they can't be got at undetected, and the interference extends to several feet above the roof. Thus someone on the far side of the building can get a signal from the tower, but not in the building or close to it.

michaellashinsky
michaellashinsky

It is a federal crime to jam communications. I don't know all the specifics, but a Faraday cage built into the walls and ceiling of the building is legal, but any technology to jam a signal is illegal. (Unless one has to walk 25 feet away to get a signal not blocked by the size of the building itself.) If this company is broadcasting a jamming signal, they could be in very big legal trouble. I would love to know more about this. This is the same problem the prisons are having right now. Cell phones are being smuggled in and the prisons want to jam the signals, but aren't allowed to by law. They could drape a giant Faraday netting over the entire prison, but it would be costly, difficult, and would probably violate some rule against blocking access to sunlight and fresh air.

Deadly Ernest
Deadly Ernest

to the judge and who appointed them, not the age of the law. The ruling is, in my view, idiotic rubbish as the precedent the judge used on the media is NOT relevant to the case when looked at sanely. The policy as quoted does NOT restrict what a person can say about the company on their own time, but does tell them not to make statements to the media rubbishing the company on company time - a very valid policy. Then the judge goes on to say the policy is wrong as it violates discussions about the union on company time. The policy does NOT limit talks with the union or talks with other staff in any way, just saying bad things to the media without prior approval.

Charles Bundy
Charles Bundy

prior precedent on the social media issue. He didn't even have to think on that one. And BTW don't put words in my mouth. The OP tried to link a sitting US president with a law that is 60 years old. I believe the term used was [i]idiocy[/i] not [i]rubbish[/i]. :)

Deadly Ernest
Deadly Ernest

in the hands of the judges involved. Judges, especially the senior ones, are often making judgements based on politics and not the laws involved. This sub-thread started with a political call which you said was rubbish due to the age of the law - an answer that's either totally irrelevant to the original claim or an attempt at a political answer contrary to the original claim.

Charles Bundy
Charles Bundy

the vagaries of judges have no bearing on my attempt to focus on the law at hand rather than political idiocy.