Category: NLRB

Social Media Policies

Social Media Policies Still Uncertain for Employers

In August 2019, the National Labor Relations Board published an advice memorandum about social media policies. The September 5, 2018 memo addressed particular provisions of written policies of CVS, the retail drug store chain. Although aimed at one employer’s specific policies, the advice memo provides helpful guidance for other companies. But, it doesn’t create absolute certainty on all employee social media issues.

Legal Backdrop – NLRA

The National Labor Relations Board (NLRB) enforces the National Labor Relations Act (NLRA). The NLRA allows private-sector employees to form unions. It also gives employees the right to engage in other activities for their mutual protection. Fundamentally, that means protection from their employers. This includes rights to communicate regarding terms and conditions of employment–things like wages, hours, and work conditions. These are known as “Section 7” rights, referring to the applicable NLRA provision.

“Social media” emerged as a technological and cultural phenomenon in the last part of the 2000s decade. Employers soon wondered how the new communication methods would affect the workplace. They started drafting policies and guidelines for employees–what they could or (more often) couldn’t do online.

Perhaps surprisingly, the NLRB stepped in and started scrutinizing social media policies. The agency began finding portions of the policies unlawful under the NLRA. It said that the employers’ new prohibitions would arguably deter employees from engaging in communications about work that they had a right to participate in under federal law.

After a political shift in Washington following the 2016 election, the NLRB started to change its tune. In a December 2017 decision involving The Boeing Company, the NLRB announced a less restrictive view on employer policies, including social media parameters.

Current Social Media Policy Standard

The 2017 Boeing case established a new test for judging whether employee policies violate the NLRA.

If a rule is “facially-neutral,” but could be read to violate the NLRA, the NLRB will weigh two considerations:

  1. The nature and extent of the potential impact on Section 7 rights; and
  2. Legitimate business justifications associated with the rule’s requirements.

The NLRB observed that this standard creates three possible categories of such rules.

Category 1 Rules

These are rules that are lawful for employers to maintain as a general matter, either because:

(a) The rule does not prohibit or interfere with the exercise of Section 7 rights; or

(b) Even though the rule has a reasonable tendency to interfere with Section 7 rights, the potential adverse impact on those protected rights is outweighed by employer justifications associated with the rule.

This includes rules requiring “harmonious relationships” and “civility” in the workplace.

Category 2 Rules

These are rules that require individualized scrutiny in the specific case at hand. The NLRB will look at relevant circumstances to balance the impact on Section 7 rights against any legitimate business justifications.

Category 3 Rules

These are unlawful rules where the Section 7 implications cannot be justified by business concerns.

Prohibitions on employees discussing wages and benefits with each other fall into this category.

Lawful Social Media Rules

Here are some of the types of rules that the NLRB’s Division of Advice deemed acceptable in CVS’s situation:

  • Employees who speak on social media about the company “in any way” must make it clear they are a company employee but are not speaking on behalf of the company.
  • Use of any company or brand name or logo as part of a social media account requires prior company approval.
  • Employees may not post anything “discriminatory, harassing, bullying, threatening, defamatory, or unlawful.”
  • Taking or sharing photos from non-public areas or internal meetings is prohibited.
  • Employees may not post “content, images or photos” that they don’t “have the right to use.”
  • Internal communications and information must be kept confidential.
  • Employees must use a disclaimer if they speak about the company on social media.
  • Employees cannot give professional recommendations or references regarding current or former company employees through social media posts.

In the past, the NLRB likely would have found many of these rules to violate the NLRA. While the Division of Advice’s “blessing” of these rules is a good sign for employers, the memo does not guarantee how the NLRB would ultimately rule on any particular rules. The specific words and context of social media policies can change the analysis. As can the composition of the NLRB Board.

Unlawful Social Media Rules

The NLRB advice memo ruled that at least portions of the following types of rules were unlawful as used by CVS:

  • Employees may not disclose “employee information” through social media.
  • Employees who mention their work for the company on social media must disclose their real name and job title.

The Division of Advice stated that the rule about employee information could be problematic because employers cannot prohibit employees from sharing “employee contact information and other non-confidential employment-related information.”

It indicated that the rule requiring employees to self-identify goes against NLRB precedent. Traditionally, employees have the right to engage in collective action without identifying themselves. But, the Division of Advice noted, the employer can otherwise avoid some of its legitimate concerns by requiring even unidentified employees to acknowledge their employment status and disclaim that they are not speaking on behalf of the company.

The full NLRB advice memo regarding the CVS social media policies is available here.

Reviewing Your Social Media Policy

The pendulum has definitely swung back in employers’ favor on this subject. Accordingly, this might be the right time to review your social media policies, assuming your company already has one. If you don’t have one, but want one, then these latest developments can help guide you. But, in either case, most employers shouldn’t rush to impose the most restrictive policy possible without careful consideration of the implications.

First, you should evaluate what employee social media issues your company has had in the past. If none, then your existing policy (or even the absence of a policy) might be sending a sufficient message.

Second, does the nature of your business generate specific impetus for different social media policies than what you currently have? Relevant factors include the nature of your workforce, the prevalence of highly confidential information, the use of social media for conducting positive business activities, etc.

Third, how will your employees respond? Most people by now are accustomed to using social media in their daily lives. Any efforts to curtail their activities could make employees nervous, if not angry. So make sure the justification for greater restrictions justifies the potential backlash.

Finally, if you do want to revise your social media policies, seek legal advice. You can’t simply rely on what the NLRB’s Division of Advice said was okay for CVS. This is an area where every word matters. And, even then, some risk remains. You should have a clear understanding of these risks and attempt to mitigate them in advance.

 

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Students Out of Unions

NLRB Proposes to Keep Students Out of Unions

On September 23, 2019, the National Labor Relations Board (NLRB) issued a proposed rule that would address whether college and university students who work for their schools can join unions. This rulemaking is a new approach to resolving a labor law question that has not had a consistent answer in recent decades. The proposed rule would enable institutions of higher education to keep their students out of unions.

Are Students Employees?

Many students hold jobs with their schools. For example, many graduate students serve as teaching assistants. The students often receive compensation for this work, whether direct compensation or credit toward their education costs.

The question of interest under the National Labor Relations Act (NLRA) is whether these students qualify as “employees” who have the right to form or join a union. Specifically, that is, a union that would negotiate on their behalf with the school over the terms and conditions of their employment.

This question has even come up in recent years regarding college football players. Should they be able to unionize because they receive a scholarship to play football?

(Note: The NLRB only has jurisdiction over private, non-governmental employers. Accordingly, public colleges and universities are outside its jurisdiction. However, the many private schools in the country are within its purview.)

Historical Approach

For many years, the NLRB has interpreted the NLRA primarily through adjudicating cases. It rarely used formal rulemaking to establish legally binding interpretations of the law. The Board’s adjudicative approach has increasingly produced a back-and-forth pendulum on many contentious issues. As a result, the labor law’s protections depend more and more on which party controls the NLRB.

In 1974, the NLRB ruled in a case involving Stanford University that graduate student research assistants are not “employees”. Instead, the Board ruled, they were “primarily students”. This decision kept college students out of unions for more than 25 years.

Then, in 2000, the NLRB held for the first time that certain New York University graduate students were employees under the NLRA. That conclusion was reversed, however, just 4 years later in a case involving Brown University.

Most recently, the NLRB went back in the direction of its NYU decision, and beyond. In 2016, the Board ruled that both graduate and undergraduate students at Columbia University could qualify for the NLRA’s protections as employees, even if their positions were externally funded.

Proposed Rule to Exclude Students from Unions

Seeking to stop the bouncing ball, the current NLRB has shifted toward rulemaking on significant labor policy issues. On the student-employee issue, the Republican Board majority takes a position that would keep students out of unions. In other words, the NLRB would not assert jurisdiction over them under the NLRA.

As an exception to standard jurisdiction over private colleges and universities, the proposed rule provides:

“Students who perform any services, including, but not limited to, teaching or research assistance, at a private college or university in connection with their undergraduate or graduate studies are not employees within the meaning of Section 2(3) of the [NLRA].”

Comment Period

As required under federal law, the NLRB has allowed time for the public to comment on the proposed rule.

Interested parties can file comments up until December 16, 2019. In addition, comments responding to other comments can be filed until December 30, 2019.

Given these deadlines, the NLRB will not be able to issue a final rule this year. However, it is likely there will be a final rule that will keep college and university students out of unions beginning in 2020.

What This Means for Employers

If you work for a private college or university, the potential impact is somewhat apparent . . . at least in the short term. With this change, students who work for the school will not have rights under the NLRA to engage in collective activity for their mutual aid and protection. They will not be able to join unions if the employer objects. But, if the political tides shift in Washington, the rule could be eliminated or revised in the future.

For other private employers, this signals a trend toward pro-employer rulemaking by the NLRB. Generally, this is a positive sign of greater leeway to run your business. But, again, the trend could be shortlived. Employers will continue to be at the mercy of the party that controls the NLRB–generally, the one that holds the Presidency. So, you can never get too comfortable in your understanding of the NLRA’s impact on your workplace.

 

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Charter Schools NLRB Jurisdiction

Will the NLRB Expel Charter Schools?

On February 4, 2019, the National Labor Relations Board (NLRB) set the stage to review whether it should exercise jurisdiction over charter schools. In two 2016 cases, the NLRB agreed to cover charter schools that are not political subdivisions–i.e., that are not traditional public school districts. At that time, the Board consisted of a majority of Democratic members who favored expanding protections for unions and employees. The NLRB now has a Republican majority.

[For more general information, read: NLRB Jurisdiction: Are We Covered?]

What’s the Issue?

The NLRB has the authority to enforce the National Labor Relations Act (NLRA). This law applies to private, but not governmental employers. Some states have their own similar laws and agencies related to labor relations rights and unionization among public employers. Charter schools have raised questions of the boundaries between these separate legal regimes.

Charter schools are still a relatively new concept. The first ones opened less than 30 years ago. Their exact organization and structure vary based both on applicable state laws and the way the school themselves choose to operate. As their name suggests, these schools typically operate under a “charter” and receive state educational funding. Parents usually have greater freedom in choosing among charter schools, whereas public school “selection” depends primarily on where the students live.

“Political subdivisions” are exempt from coverage under the NLRA. Thus, whether charter schools are “public subdivisions” determines whether the NLRB has jurisdiction over their union-related disputes.

2016 Charter School Decisions

On August 24, 2016, the NLRB issued two decisions finding charter schools to be private corporations serving as government contractors. In other words, they were not political subdivisions. The cases involved Hyde Leadership Charter School in Brooklyn, New York, and Pennsylvania Virtual Charter School, a home-based school headquartered in King of Prussia, Pennsylvania.

Before these cases reached the Board itself, two Regional Directors of the NLRB had respectively applied a 1971 legal standard and found that the schools were not political subdivisions. The Board agreed in separate split decisions featuring dissenting opinions by the lone Republican member at the time.

Of note, among many other considerations, New York law states that charter schools are “within the public school system”. But the 2016 NLRB did not accept the state’s description as deciding federal law.

Hawkins County Test

In the 1971 Supreme Court case of NLRB v. National Gas Utility District of Hawkins County, 402 U.S. 600, the NLRB relied on a two-part test to determine whether an employer is a political subdivision excluded from NLRA coverage. The Board maintained that an entity was a political subdivision if it is “either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.” In Hawkins County, the Supreme Court rejected the NLRB’s conclusion that the utility company in question was not a political subdivision. In other words, the Court held, the Board did not have jurisdiction. The Court observed that the employer was a political subdivision under the second prong of the NLRB’s test, among other factors.

To be clear, Hawkins County did not involve a charter school. Minnesota created the first U.S. charter school law 20 years later in 1991. The Supreme Court has not yet weighed in on the question of NLRA jurisdiction of these “new” educational institutions.

Kipp Academy Charter School

A pending NLRB case involves Kipp Academy Charter School in Bronx, New York. A union currently represents the school’s teachers among other categories of employees. In January 2017, two teachers filed a petition with the NLRB seeking to decertify the union. The union argued the NLRB did not have jurisdiction. Following the Hyde Park and Pennsylvania Virtual charter school cases, the NLRB Regional Director exercised jurisdiction and directed the election.

Board Agrees to Review

On appeal, NLRB Chairman John Ring and fellow Republic Members Marvin Kaplan and William Emanuel voted to review whether the NLRB should exercise jurisdiction over charter schools. In doing so, they issued a public request for legal briefs from any interested parties.

Notably, the Republican majority acknowledged that the Regional Director had correctly applied the two-part Hawkins County test. Nonetheless, they want to reconsider whether, as a policy matter, the Board should exercise their jurisdiction, which is discretionary. They might, for example, share the view that former NLRB Chairman Philip Miscimarra noted in his 2016 dissents:

“Based on the approach embraced by my colleagues today, employees concerned about their working conditions will not know what set of rules apply to them or to whom to turn if the employer infringes on their rights, and employees are likely to face years of delay if they try to secure relief from the NLRB. Unions and employers will have difficulty understanding their respective rights and obligations, given the uncertainty about whether federal, state, or local laws apply. Most poorly served will be the students whose education is the primary focus of every charter school. In most instances, the likely result will be protracted disputes that are not definitively resolved until many or most students (and many teachers and other employees) have come and gone.”

…But Not Everyone Is on Board

The lone Democrat currently on the NLRB, Lauren McFerran, participated in the majority decisions to exercise jurisdiction over Hyde Park and Pennsylvania Virtual Charter Schools. Therefore, it is no surprise that she disagreed with the decision to review the Regional Director’s decision regarding Kipp Academy.

Member McFerran contends:

“There are not new policy justifications or legal grounds to revisit the Board’s approach to analyzing jurisdictional questions involving charter schools. Indeed, the majority identifies no specific reasons at all for granting review here. Certainly, a change in the composition of the Board is not a reason for revisiting precedent, as the Board itself has made clear.”

Invitation to File Briefs

The public has until March 6, 2019, to submit briefs arguing their views on the exercise of NLRB jurisdiction over charter schools. Submissions may not exceed 25 pages in length. They must be filed electronically through the NLRB’s website, and copies must be sent to all case participants.

How Will This Affect Charter Schools?

The Board majority emphasizes that they “have made no judgments about the ultimate merits but choose to review the briefs before arriving at any conclusions”. However, it is fair to guess that they might at least be leaning toward declining jurisdiction. That outcome, however, won’t affect all charter schools equally.

In some states, like New York, charter school employees and unions already have strong alternative legal protections under state law. If the NLRB does not exercise jurisdiction, state agencies still might (and, generally, probably would) step in and do so. In other states, however, no NLRB jurisdiction would effectively eliminate the right to unionize for charter school employees.

And even where alternative state laws apply, the specific rights and procedures available might differ in relevant ways. This reality could be motivating parties in the Kipp Academy case itself.

Individual charter schools curious about the potential impact on them should consult directly with experienced labor counsel.

 

For more on the NLRB’s jurisdiction over employers generally, click here.