The National Labor Relations Board (“NLRB”) recently issued its Third Report on social media cases. In doing so, it emphasized the importance of clarifying permissible and prohibited conduct through the use of examples. By using examples in this context, employers can avoid situations where an employee can reasonably interpret the social media policy as restricting Section 7 rights under the National Labor Relations Act (“NLRA”) which protects protected concerted activity when employees communicate with one another to discuss the terms and conditions of their employment. Moreover, providing examples can prevent a social media policy from being found to be overbroad.
In its review of social media cases, the NLRB Third Report cites many instances where policies were found to violate the NLRA because they did not include clarifying examples. For instance, a policy that instructed employees to not release confidential information regarding guests, team members or the company was impermissible because there was no limiting language or context to assure employees that Section 7 rights were not restricted. In addition, a policy instructing employees to ensure that posts were accurate and not misleading was overbroad because it could be interpreted to prohibit employee discussions about working conditions and did not provide examples of the prohibited conduct.
However, the NLRB Third Report pinpoints a few instances where policies that were otherwise overbroad were nevertheless found to be lawful due to the inclusion of clarifying examples. A policy prohibiting harassment, bullying, discrimination, and retaliation between co-workers in the workplace and online (even if it was after work hours) was found to be permissible because a list of prohibited conduct was provided, and included only plainly egregious activity. Finally, the NLRB found that Wal-Mart’s social media policy was valid in its entirety, and attached the entire policy to the report as an “example” of how “examples” can be used effectively to prevent a social media policy from being overbroad or interpreted as infringing upon Section 7 rights under the NLRA.
If you need assistance regarding an existing social media policy or with developing a new social media policy, please contact Joseph M. Hannon, Esq., firstname.lastname@example.org or Brett M. Pugach, Esq., email@example.com, in the Labor Law Practice Group.
When was the last time you had your public sector collective negotiations agreement reviewed to determine whether your contract contains non-negotiable items? Too often contractual provisions that were negotiated years ago survive contract after contract without this basic question even being considered. This basic question should be regularly raised concerning every Article of your collective negotiations agreement to ensure you are not negotiating away managerial prerogatives nor providing greater benefits than need to be provided.
It is likely your collective negotiations agreement contains a provision that is not negotiable. That means it is a topic that the public employer has complete discretion on and cannot be subject to a grievance. There are various examples, but take for instance, work schedules and shift changes. Work schedules and hours that individuals work are generally a negotiable issue. However, the hours and days in which services are to be provided are non-negotiable issues. Such nuances in public sector labor law occur with many topics from health insurance to sick leave to promotional practices and procedures, etc. Knowledge of the negotiable and non-negotiable aspects of these items is vital in ensuring your collective negotiations agreement is not giving away any of these important managerial prerogatives.
Decisions as to negotiability of issues are constantly being rendered by the Public Employment Relations Commission. These decisions may have changed a provision in your collective negotiations agreement that was previously negotiable to be a non-negotiable subject. Or, you simply may have been operating with a collective negotiations agreement that contains non-negotiable items and simply haven’t noticed. These items do not need to be bargained out of the collective negotiations agreement. Rather, they may be removed through a process called a Petition for a Scope of Negotiations Determination. This is an effective tool which should be utilized when necessary to remove such non-negotiable issues from a collective negotiations agreement. However, a discussion with the applicable unions explaining that the issue is not negotiable, may obviate the need for resorting to the filing of a scope of negotiations petition.
The first step in the process though is to know what should and should not be in your collective negotiations agreement. When was the last time you undertook this review?
For further information or advice on this topic, please contact Joseph M. Hannon, Esq., firstname.lastname@example.org, in the Public Sector Labor Law Practice Group.