Privacy Issues in the Workplace

employees and posts that are “maliciously untrue and made with the knowledge that they are false.” 547 In the case of the later, the employer was able to show that at the time the employee posted his complaint about his work vehicle breaking down, the employee was in private vehicle and not a Butler ambulance. 548 The Board upheld the conclusion of the ALJ that an employee’s public criticism of his/her employer loses its protection under the Act if the statements are maliciously untrue even if the statements might have otherwise had protection under the Act. 549 The Board also found that the employer did not violate Section 8(a)(1) by discharging the employee pursuant to its “unlawful social media policy” when the employee had lost the protection of the Act. 550 The NLRB has recognized the absence of precedent in cases involving “employer rules prohibiting, or disciplining employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter,” and that this absence of clear guidelines may create inconsistent results. 551 Agencies should therefore proceed with caution before disciplining employees for on-line comments. Both NLRB’s May 30, 2012 report and its March 18, 2015 report focus on whether certain social media policies violated the NLRA by being overbroad and thus impermissibly restricting protected activity. 552 In its March 18, 2015 report, the NLRB provided guidance on what types of policies and rules would be permitted and not permitted under Section 7. For example:

 While an employer may not restrict employees from discussing employee information outside of work, it may ban the disclosure of its own confidential information as long as the restriction is narrowly limited.  An employer cannot require employees to be respectful to the company or to managers/ supervisors, it can require employees not to be insubordinate. competitors, and direct employees not to engage in unprofessional conduct, as long as it does not prohibit criticism against management or the company.  While an employer may prohibit employees from speaking as official company representatives, it may not prohibit employees from speaking to outsiders on their own behalf.  An employer may not prohibit employees from using their personal devices to take pictures or recordings at work during non-work time.  An employer may not prohibit an employee from walking off the job although it may advise that entering or leaving employer property without permission may result in discharge.  An employer may have narrowly tailored conflict of interest rules if their context and examples demonstrate that they are not meant to apply to protected activity (e.g., designed to protect against employee graft, etc.). 553  An employer can require employees to be respectful to customers or

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 173