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Employment Law Blog: The NLRB Weighs in Again on Civility - Civility Loses - April 14, 2014

A lot of people are available to tell you how to best utilize social media, Twitter, Facebook, LinkedIn and other platforms to promote your brand, to promote yourself or even just the best way to share pictures of your cats.  However, I typically spend most of my time wondering how to manage the explosion of social media comments and postings when they negatively impact upon the workplace.  

For employers it has gotten significantly more difficult over the last several years to manage employee comments, particularly due to the efforts of the NLRB.  Employers have found it increasingly difficult to set some basic standards of confidentiality and politeness in terms of comments made about employers or co-workers.  There have been a number of memos from NLRB counsel, as well as cases which indicate that having limitations on how employees talk about work in their social media accounts can easily run afoul of NLRB requirements.  These requirements apply whether you are union or not.  

On April 1, 2014, the NLRB issued a determination in the Hills and Dales General Hospital case relating to its policies for professionalism and no, it wasn’t an April Fool’s Day joke.  (Hills and Dales General Hospital & Danielle Corliss, Case 07-CA-053556, 360 NLRB #70)  In this decision the NLRB determined that many of the policies contained within the Hills and Dales Employee Handbook were inappropriate.  These policies included statements that employees “will not make negative comments about our fellow team members” and “will not engage in or listen to negativity or gossip”.  That prohibition lets out most of the daily postings on Facebook.  Further, the NLRB disagreed with the ALJ’s prior decision which allowed a professionalism rule to stand, determining that the employer must also immediately cease and desist from “maintaining a work rule requiring that employees represent the employer in the community in a positive and professional manner in every opportunity.”  The NLRB determined that this might unduly chill employee comment.  This determination, taken in conjunction with prior determinations, such as a decision that an employer may not tell employees that information obtained during the course of an investigation should be kept confidential during the pending investigation, make it difficult for employers to enforce their mandatory equal employment opportunity, anti-discrimination and similar policies.  

Representatives from Hills and Dales General Hospital have indicated that it is their intent to appeal this ruling.  But, what to do now?  While the final ruling in Hills and Dales has not yet been made, it is clear the trend is to limit the kinds of rules employers may implement regarding civility.  Many employers have spent significant time on training for customer service, civility and co-employee interaction - only to be told these reasonable expectations might not be enforceable.  Regardless of the NLRB position, employers continue to have an obligation to enforce the law - including HIPAA, the Red Flag Rules, and anti-harassment.  Policies should focus on the big issues with clarity and specificity.  Just assume the employee will post “my boss is a jerk” at some point.  However, unless it is coupled with something more, the message from the NLRB is “just let it go”.