The National Labor Relations Board’s Division of Advice has sanctioned another employer’s social media policy and actions taken against an employee for the policy’s violation. In an advice memorandum issued on October 19, 2012, Barry J. Kearney, Associate General Counsel for the NLRB’s Division of Advice, recommended the dismissal of unfair labor practice (ULP) charges lodged against Cox Communications on the grounds that neither its social media policy nor the termination of an employee for violating this policy interfered with employees’ Section 7 activities under the National Labor Relations Act (NLRA). 

The complaining employee in this case was a customer service representative responsible for responding to customer concerns and complaints about the employer’s services. After a confrontational exchange with an irate customer, the employee used his cellphone to make disparaging remarks about the customer on his Google+ account. Specifically, the employee posted the following comment: “Just because you are having problems with your tv service does not mean you should call me a fa--ot! F--K YOU!” A coworker responded with a comment mocking the employee and the situation.

A supervisor read the comments and reported the employee to management. The employee was placed on paid suspended leave while the incident was investigated. After the company discovered additional critical and inappropriate comments the employee had posted online, it terminated his employment for violating the organization’s social media policy. Charges that the employer’s social media policy was overbroad, in violation of the NLRA, and that the employee was unlawfully terminated for engaging in protected, concerted activity, soon followed. 

The company’s social media policy, in relevant part, prohibits employees from: 

mak[ing] comments or otherwise communicat[ing] about customers, coworkers, supervisors, the Company, or Cox vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age, race, religion, sex, sexual orientation, gender identity or expression, genetic information, disability, national origin, ethnicity, citizenship, marital status, or any other legally recognized protected basis under federal, state, or local laws, regulations, or ordinances. Those communications are disrespectful and unprofessional and will not be tolerated by the Company. . . . 

The company’s social media policy noted specifically that no portion of it “is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment,” and that employees have the affirmative right to engage in, or refrain from, such activities. 

After reviewing the policy and circumstances surrounding the employee’s termination, the Division of Advice concluded that the employer did not act unlawfully, and recommended dismissal of the ULP charges. According to the Division: 

The challenged provisions of the Employer’s social media policy do not explicitly restrict Section 7 activity. Moreover, there is no indication that the Employer promulgated its policy in response to union activity or that the policy has been applied to restrict protected activity. Thus, the issue here is whether employees would reasonably construe the cited policy language to prohibit Section 7 activity. We conclude that they would not. 

In examining the breadth of the policy’s prohibitions to determine whether it infringes on Section 7 activity, the Division took into consideration the Board’s position “that a rule’s context provides the key to the ‘reasonableness’ of a particular construction.” The Division explained that Cox’s prohibition on making disparaging or lewd comments about customers, coworkers, and the company “consists of a long list of plainly egregious conduct” that “clearly would not be reasonably understood to restrict Section 7 activity.”  

The Division similarly found that the policy’s provision directing employees to “respect the laws regarding copyrights, trademarks, rights of publicity and other third-party rights,” and to “not infringe on Cox logos, brand names, taglines, slogans, or other trademarks” were lawful, as an employer has a  proprietary interest in its name and reputation, and urging (but not commanding) employees to respect the law cannot, in this context, be considered an infringement of an employee’s rights under the NLRA. In addition, the Division found the policy’s savings clause “further ensures that employees would not reasonably interpret any potentially ambiguous provision in a way that would restrict Section 7 activity.”  

Finally, the Division found that the employee’s termination did not violate the NLRA, as his online comments did not constitute concerted activity for mutual aid and protection. Rather, the Division found, his Google+ postings were made “solely by and on behalf of the employee himself” and were directed at a customer, not a coworker. The online rant included no call for coworkers to engage in group action in support of his complaint, nor could it be seen as a continuation of an earlier discussion with coworkers about wages or other terms and conditions of employment. The one responding coworker comment was sarcastic in nature, and not a dialogue about working conditions. As such, the employee’s comments were not protected. 

This latest advice memorandum provides additional insight into the Board’s evolving position on social media and further reinforces the position that “rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, so that they would not reasonably be construed to cover protected activity, are not unlawful.” For more information on the intersection of labor law and social media policies, see Littler’s ASAP, Social Media Policies in the NLRB's Crosshairs, by Chip McWilliams, Philip Gordon, and Kathryn Siegel.