The New Position

The NLRB’s effort to protect employees from vague or overly broad social media policies is an important step in bringing labor law up to date with the current state of communications and media. It was critical for the NLRB to extend labor law into the social media sphere and to take a stand against out truly oppressive corporate social media policies. I will explore how the broadness of the NLRB’s position presents several concerns for businesses and raises the possibility for various legal conflicts.

The latest NLRB memorandum advised that a company guideline instructing employees to not post “material non-public information” or “confidential or proprietary” information is unlawful due to vagueness. The NLRB argued that such prohibitions could “reasonably be interpreted to include information concerning terms and conditions of employment.” While I generally support the NLRB’s position, it may leave employers needlessly exposed to harmful public disclosures. The harm that a consumer electronics company, for instance, would hope to avoid by issuing a social media policy regarding public disclosures (e.g., the posting on Facebook of pictures or descriptions of products still in development) seems rather attenuated from labor concerns regarding the “terms and conditions of employment.” Although I believe the NLRB should more carefully flesh out its concerns regarding labor issues this area, it is important to note that employers have other means of protecting themselves. Employers have traditionally resorted to trade secret lawsuits to seek injunctions, damages, and other remedies against employees. However, these remedies are not always effective against the immediate, widespread reach of Facebook, Twitter, and other social media applications.

Employers might also argue that the NLRB’s position on social media policies exposes companies to undeserved liabilities arising from disputes between employees. The most recent NLRB memorandum notes that a company’s prohibition against making “[o]ffensive, demeaning, abusive or inappropriate remarks” online was held to be unlawful because such a provision proscribes a “broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.” I believe it is questionable whether the particular provision that the NLRB struck down is overbroad. Nevertheless, arguing that this provision is not overbroad would probably require a court to acknowledge that employee free speech is simply not as protectable as citizen free speech.

There are further potential downsides to businesses as a result of NLRB’s aggressive position on social media guidelines. Corporations may be liable under Federal Trade Commission regulations when employees give online endorsements to products from their employers. The recent NLRB position threatens employers’ ability to curb such endorsements. However, employers could likely solve this issue by requiring a “no-endorsements” provision in their contracts. The NLRB’s new position also may leave corporations more prone to reputational damage as a result of employees’ social media activity. Historically, courts have construed the NLRA to protect employees’ ability to criticize their company’s products or services, so long as the criticism was tied to a labor dispute. The NLRA was not read to give employees the all-encompassing right to disparage their company’s products or services. The recent NLRB position—which is reflected in the EchoStar? and Costco decisions—greatly expands employees’ right to disparage their employers, which I believe employers should be entitled to protect themselves from.

Although I believe NLRB’s new position will require refinements, I think it is an important step in loosening employers’ control over employees. Within the limited parameters of our current labor system, this position will allow workers to harness social media for a positive purpose: improving labor conditions. The at-will system shows no signs of collapse; perhaps the most realistic gains for workers one can hope for are these slight expansions of freedom.

Surely we can begin by recognizing that anything significant done in favor of workers' rights, perhaps even a triviality on this scale, "threatens important employer interests." The most important private employer interest in the United States is maintaining the system of at-will employment, which has been absolutely rejected in every other highly-developed democratic society. This outrage against human dignity means that almost every worker in this immense society must be in fear, all the time, of being fired, without recourse, for saying anything, anywhere, on the job or off, about anything, in any context, if the employer doesn't like it. It also means that any worker may be as comprehensively surveilled, on or off the job, as the employer cares to demand, on pain of firing. Almost the only workers who have any form of protection against this intolerable despotism, under which no human being should be made to live, are the tiny fraction of the workforce who have the benefit of a union contract.

As to these, and as to workers seeking to organize to experience the minimal protection of human dignity involved in actually having the freedom of speech all the yellowed parchment documents promise, you wish to object that the NLRA is not letting employers fire people for speaking, as a result of which they may experience administrative or other expenses in connection with the conduct of their businesses, for which necessarily, according to the degree of their power in the market, they will make their customers pay.

Within the callow and self-serving rhetoric of "management-side" US labor lawyering, the argument is tenable, by virtue of the usual moves, which consist mostly in ignoring what everyone else outside the charmed circle of the rhetoric can see.

Not conflicts of law, legal conflicts. Anything done on behalf of workers will result in legal conflicts, because law is the system that owners use to mediate their conflict with workers wherever something cheaper won't work. It is no objection to a policy in favor of workers that it will cause conflicts with management. Any policy reductive of the power implicit in at-will employment will cause more conflict than the cost of compliance would bear, because all power protects against its erosion through struggle by overreacting to challenges wherever it can do so safely, so as to deter future challenges. So even if your analysis were optimal, and you were not able to show only that employers would make arguments and attempt to prevail in litigation, but also able to show that the cost to them of doing so would be larger than the cost of allowing their diminution of power, you would still have proved nothing against the adoption of the policy.

This is not a tenable argument. The employer's legal instruments for dealing with such issues are by no means limited to firing for failure to observe the "social media policy." Employers deal with disclosures of trade secrets by bringing trade secrets lawsuits, which afford them a range of legal protections, including injunctions, damages, and control of information in the hands of third parties, that far exceed the remedial value of the power to discipline a worker for not following in-house rules. This is a smokescreen behind which lies the usual claim, that I should begin from an ownership of my worker's mind, with the right to fire him anytime for what he says, which should only be limited if it couldn't possibly cost me anything. Other law exists to deal with these issues among equals in the market. Trade secret law, rules of copyright and patent infringement, and all the other systems of private liability and remedy are adequate remedies between entities far more formidable to one another than individual workers. There is no democratic value furthered by adding to the other instruments by which employers can vindicate their legal interests a right only exercised by superiors in unequal relations: the right to deprive of livelihood.

The NLRB’s position on social media policies also leaves companies needlessly exposed to liabilities arising from disputes between employees. For instance, a senior employee could use a social media site to disparage or harass a worker who answers to him at work.

This is a supervisory employee, not part of a union bargaining unit. What has the discipline applied to him for his management failures and the harm thereby caused to do with the subject you are discussing?

A company should be able to protect against the potential liability arising from a private suit in this scenario. Nevertheless, the most recent NLRB memorandum notes that a company’s prohibition against making “[o]ffensive, demeaning, abusive or inappropriate remarks” online was held to be unlawful because such a provision proscribes a “broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.” This is another case of the NLRB preemptively striking down a reasonable company guideline whose potential chilling effect on labor speech is rather attenuated.

What does that mean? The provision is overbroad. "Chilling effect" is a test applied to determine standing to bring overbreadth claims, not a form of overbreadth analysis. If an overbroad regulation has a "chilling effect" on other speakers, the courts will allow a party against whom the provision might have been constitutionally applied to challenge it for overbreadth anyway, so as to avoid the period of discouragement of protected speech that might ensue before a plaintiff to whom the statute could not be constitutionally applied appears. That's nothing to do with the question, whether a provision against against making offensive, demeaning, abusive or inappropriate remarks is overbroad. The Board finds what we would undoubtedly find under the First Amendment if a public employer retaliated against a worker whose expression it claimed violated such a policy. Because that phrase sweeps within its ambit immense swathes of constitutionally or statutorily protected speech, it falls. The only way honestly to dispute the legal conclusion is to acknowledge the usually-hidden premise, that employee free speech protected by the statute is of so much less a value than citizen free speech protected by the First Amendment, that an entire class of arguments inadmissible with respect to the power to give an appearance summons will justify the power to deprive someone of her job.

There are further potential downsides to businesses as a result of NLRB’s aggressive position on social media guidelines. Corporations may be liable under Federal Trade Commission regulations when employees give online endorsements to products from their employers. The recent NLRB position threatens employers’ ability to curb such endorsements.

What case do you anticipate where the employer doesn't want an endorsement from the employee and the employee forcibly provides one? Do you anticipate the FTC holding the employer factually responsible for an endorsement it did not solicit? This conjectured situation is the reason why the Board should not have undertaken to protect the rights of workers? Is there a reason why an employer with this particular concern would be unable to insert a "no-endorsements" provision in the work rules accompanying the contract? That should make clear that the employer has a narrow business interest: to disclaim responsibility for certain possible employee conduct. Preserving a right to fire for words spoken need not be any part of that contractual system.

Further, corporations may now be more prone to reputational damage as a result of employees’ social media activity. Historically, courts have construed the NLRA to protect employees’ ability to criticize their company’s products or services, so long as the criticism was tied to a labor dispute. The NLRA was not read to give employees the all-encompassing right to disparage their company’s products or services. The recent NLRB position—which is reflected in the EchoStar and Costco decisions—seemingly greatly expands an employee's right to disparage his employer.

So what? Disparagement by individual workers is hardly of any significant importance given the constant flood of disparagement and reputation-shaping undertaken by firms and responded to by the immensely larger body of their customers. Businesses can't fire their customers for slanging them individually or collectively, and there's no reason why they should be able to fire their workers for doing so, either. That conflicts with the very idea of the master's right to fire the servant for no reason, of course. Which is precisely why there ought to be no possibility of inserting such a power under vague language into the fabric of a union agreement that requires positive implementation of workers' rights and securities.

This argument works as it does because it depends upon parochialism. American labor law is unique in its world for its refusal to recognize that workers' rights in industrial democracy include a right to be free of deprivation of the job without cause. Because this argument can fortify itself within the sliver of the advanced global societies in which that proposition is denied, it is sometimes formally complete, with limitations as noted. But the whole point of the challenge posed by the Net is that the companies you speak of that will complain their asses off about how terrible all this is live and do business quite profitably in societies where this question could never come up.

As a rhetorical exercise, arguments in favor of privilege and against personal freedom are at least as challenging as those that display some responsibility for seeking justice. Personally, I do not wish to perform such advocacy. As a teacher, it is my role to help you to do better what you do. It is not the same, however, in undertaking that effort, to advise on the rhetorical sufficiency of the argument and on the structure of social awareness represented by the position taken. The latter is only relevant if you are trying to be a lawyer. As the output of a mouthpiece, a hired talker making the best of the position within the sterile limits of the analysis dictated by the existing structure of power, it's good except where I have noted it isn't. As a system of belief for a person seeking to earn an honest living furthering justice, it seems to me too blinkered to be capable of serving your needs. You would have to want not to exist outside the scope of the parochial thinking of a bunch of local practitioners selling themselves to the same side all the time to wind up thinking this way.

There's a big world out there, which is run by concepts and includes forces that don't have any role in the thinking of parochial local practitioners in any legal system. They all know the rules, but the realist knows that in the end the rules don't mean much. What they need are theories that account for all the global forces that act on them locally. This they don't get, you can have for nothing, and you are throwing away here.

Break yourself out of the straightjacket which is one tired bunch of bullshit artists' way of thinking about their little racket in this corner of the world, and get your aim up higher. The most profound changes in the communications infrastructure of the human race that have happened in nine thousand years are going on. In less than one generation they're going to transform every human workplace on earth. Wouldn't it be better to address questions arising from these changes in a slightly less crabbed context?

Being the servant of unremitting defense of at-will employment and the exercise of unlimited power over the working poor may be a choice that earns a steady income. But even if you mean to turn to it, some thought for the larger questions of the aim of social development, and the likely consequences of the connection of everyone to everyone else, may you do good in your chosen profession.

Labor Law and Social Media Policies

-- By DanielLennard - 15 Oct 2012

Social media websites and applications have the capacity to play a powerful role in labor movements. Through Facebook, Twitter, LinkedIn? , and other services, organizers can help coordinate labor activity, disseminate information to workers, and publicize their grievances. With the growth of social media, many corporations have instituted company guidelines limiting employees’ online activity. This year, the National Labor Relations Board (“NRLB”) opened up an aggressive front against corporate social media policies that potentially threaten workers’ rights under Section 7 of the National Labor Relations Act (“NLRA”). The NLRB’s new position—as reflected in official memoranda and administrative case law—will likely help workers to organize and to shed light on illegal working conditions. Unfortunately, the NLRB’s expansive reading of the NLRA threatens important employer interests.

The NLRB’s position seemingly outlaws a very broad spectrum of corporate social media prohibitions. The NLRB’s General Counsel has published three memoranda describing specific employer guidelines that the NLRB considers unlawful. These include guidelines that broadly prohibit, without clarifying language, disclosures of “confidential” or “non-public” information, as well as online postings that are “inflammatory” or “defamatory.” The memoranda state that such prohibitions, even prior to their actual enforcement, would chill employees’ NLRA Section 7 rights, which include the right to organize and the right to disclose, expose, and debate the terms and conditions of their employment. In two recent cases, EchoStar and Costco, administrative judges have closely followed the General Counsel’s memoranda in striking down corporate social media policies.

The NLRB’s effort to protect employees from vague or overly broad social media policies is an important step in bringing labor law up to date with the current state of communications and media. It was important for the NLRB to extend labor law into the social media sphere and to take a stand against truly oppressive corporate social media policies. However, the broadness of the NLRB’s position presents several concerns for businesses and raises the possibility of various conflicts of law.

The new NLRB position threatens corporate interests in protecting intellectual property and inside information. The latest NLRB memorandum advised that a company guideline instructing employees to not post “material non-public information” or “confidential or proprietary” information is unlawful due to vagueness. The NLRB argued that such prohibitions could “reasonably be interpreted to include information concerning terms and conditions of employment.” I believe this position is overly protective of workers and leaves employers needlessly exposed to damaging public disclosures. The harm that a consumer electronics company, for instance, would hope to avoid by issuing a social media policy (e.g., the public disclosure of pictures or descriptions of products still in development) seems rather attenuated from labor concerns regarding the “terms and conditions of employment.” The NLRB should more carefully flesh out its concerns regarding labor issues in an area where the potential damage to a company via social media—in terms of the threat to competitive advantages, trade secrets, and intellectual property—is very significant.

The NLRB’s position on social media policies also leaves companies needlessly exposed to liabilities arising from disputes between employees. For instance, a senior employee could use a social media site to disparage or harass a worker who answers to him at work. A company should be able to protect against the potential liability arising from a private suit in this scenario. Nevertheless, the most recent NLRB memorandum notes that a company’s prohibition against making “[o]ffensive, demeaning, abusive or inappropriate remarks” online was held to be unlawful because such a provision proscribes a “broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.” This is another case of the NLRB preemptively striking down a reasonable company guideline whose potential chilling effect on labor speech is rather attenuated.

There are further potential downsides to businesses as a result of NLRB’s aggressive position on social media guidelines. Corporations may be liable under Federal Trade Commission regulations when employees give online endorsements to products from their employers. The recent NLRB position threatens employers’ ability to curb such endorsements. Further, corporations may now be more prone to reputational damage as a result of employees’ social media activity. Historically, courts have construed the NLRA to protect employees’ ability to criticize their company’s products or services, so long as the criticism was tied to a labor dispute. The NLRA was not read to give employees the all-encompassing right to disparage their company’s products or services. The recent NLRB position—which is reflected in the EchoStar and Costco decisions—seemingly greatly expands an employee's right to disparage his employer.

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