Minnesota Employment Law Report - Observations on labor and employment law from FLFV

On May 30, 2012, Acting General Counsel of the National Labor Relations Board (“NLRB”) Lafe E. Solomon issued a new report on employees' social media use, describing several social media policies and analyzing whether the policies unlawfully interfered with the rights of workers under the National Labor Relations Act (“NLRA”).

Overbroad Social Media Policies Are Unlawful under the NLRA

In the report, Solomon confirmed that overbroad company rules and policies violate the NLRA where employees would reasonably interpret them as limiting their exercise of rights guaranteed by federal labor law.

Solomon cited the following policies as overbroad and unlawful:

• “You also need to protect confidential information when you communicate it. . . . Never discuss confidential information at home or in public areas.”


• “If you engage in a discussion related to [Employer], . . . you must also be sure that your posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site.” Nonpublic information was defined to include information “related to” the company's financial performance, as well as personal information about employees.


• “Don't pick fights” and reminding employees to communicate in a “professional tone” without making “objectionable or inflammatory” comments.

Even though some of these policies had a “savings clause,” stating that they were not intended to cover rights protected by the NLRA, Solomon still considered the policies unlawful.

Carefully Drawn Restrictions Are Lawful

Solomon did deem some restrictions permissible, particularly when the policy contains specific examples of prohibited conduct, so that employees understand that the policy does not prohibit protected activity under the NLRA.

For example, one prohibition against “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace . . . even if it is done after hours, from home and on home computers,” was considered lawful because the rule gave employees an illustrative list of prohibited acts, such as bullying and discrimination.

Likewise, while a specific policy instructing employees to be “fair and courteous” when posting online material could be overly broad, Solomon concluded that the policy provided sufficient examples of plainly egregious conduct, so that employees would not reasonably construe the rule to prohibit protected conduct.

Solomon specifically commented on Wal-Mart’s revised social media policy, finding it lawful in its entirety. A copy of this policy is available here.

Bottom Line

This new guidance provides additional insight into the NLRB’s treatment of social networking policies. Employers should analyze their own policies in light of this instruction and develop a social media policy that provides clear examples of what is prohibited.

On December 23, 2011, the National Labor Relations Board announced that it is delaying implementation of its new rule which requires employers to post a notice of employee rights under the National Labor Relations Act.  The rule was scheduled to take effect on January 31, 2012.  The new effective date of the posting requirement is April 30, 2012.

The Board has agreed to delay the posting requirement at the suggestion of the Federal District Court in the District of Columbia.  The Court is currently considering a pending lawsuit challenging the legality of the new rule.  While the Agency has argued that the posting requirement is a mere statement of employee rights under the law which the Board is empowered to enforce, opponents claim that the posting requirement is outside the Board’s grant of authority from Congress.

If the Court does not enjoin the rule, employers will be required to comply with the posting requirement starting on April 30th.  Note that this is the same day that the Board’s new procedures for representation cases are scheduled to go into effect.  (An article on that topic is available here.)

This is the second time the Board has delayed the implementation of the new posting rule.  The first delay was on the Board’s own initiative and was intended to give employers more time to prepare for the implementation process.  (See our previous report that is available here.)

The posting rule may or may not survive legal challenge.  For now, however, there is no urgency in clearing off that bulletin board space or uploading a copy of the notice to your intranet page for employees.  April 30th is the earliest date on which compliance will be required.

Stay tuned for further developments.

Even as the economy once again begins to sputter, the overall strength of the U.S. economy has spurred a marked increase in the number of labor disputes. This trend stands in stark contrast to 2009 when, according to the Bureau of Labor Statistics, there were only 5 major work stoppages (i.e., those involving 1,000 workers or more), the fewest since 1947. The figure ballooned to 11 in 2010, and recent activity suggests there will be another increase in 2011.

On the East coast, 45,000 Verizon workers went on strike in early August, after the company sought concessions from its landline workers to help offset declining revenue in the division. Despite an inability to agree on a new contract, employees agreed last week to return to work provided Verizon agreed to revise the manner in which collective bargaining would proceed.

Out West, members of the United Food and Commercial Workers, which represents approximately 62,000 workers at various grocery stores in California, including Ralphs Grocery Co., Albertsons Inc., and Safeway Inc.'s Vons supermarkets, voted overwhelmingly in favor of authorizing a strike if union negotiators cannot reach agreement with the companies on a bargaining contract to replace the one that expired March 6.

More locally, on August 1, 1,300 union workers were locked out of American Crystal Sugar’s five sugar processing plants in Minnesota, North Dakota and Iowa. The lockout is the company’s first labor impasse in 30 years. American Crystal accounts for 38 percent of the country’s production of sugar from beets and 15 percent overall.

Prior to the lockout, American Crystal offered its employees a 17% pay increase over five years. The offer included a 4% increase in the first year, a $2,000 one-time bonus, followed by annual percentage increases of 3, 2, 2, and 2 percentage points. The previous contract had offered 2 percent annual pay increases. But, the union rejected the offer, citing concerns about provisions relating to subcontracting and health care costs.  On August 24, both sides agreed to resume negotiations.

Bottom Line

Only time will tell whether this trend will continue. But, with hopes fading for a strong economic recovery in the near future, negotiators for labor and management will likely find themselves continuing to battle over a shrinking piece of the pie.