NLRB Finds that Employer's Social Media Policy Does Not Violate NLRA

Tuesday, November 6, 2012
The NLRB issued an Advice Memorandum to the Regional Director who requested information about whether an employer, Cox Communications, Inc. (Employer), violated Section 8(a)(1) of the NLRA by maintaining a facially unlawful social media policy, and, as a result, unlawfully discharging an employee (Employee) because of comments he made on his social media account.

The Employer maintained a social media policy which contains the following provisions:

Nothing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities. . . .

DO NOT make comments or otherwise communicate 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. . .

DO respect the laws regarding copyrights, trademarks, rights of publicity and other third-party rights. To minimize the risk of a copyright violation, you should provide references to the source(s) of information you use and accurately cite copyrighted works you identify in your online communications. Do not infringe on Cox logos, brand names, taglines, slogans, or other trademarks.

The Employee worked as a technical support representative.  After a customer phone call during which the customer and the Employee had a heated exchange, the Employee posted the following to his Google+ account:  Just because you are having problems with your tv service does not mean you should call me a f….! F……!  The post was seen by a supervisor.  The Technical Services director told the Employee that his post violated the social media policy and the Employee was placed on paid leave while there was an investigation to determine the appropriate discipline.  Ultimately, the Technical Services director informed the Employee that he was terminated for violating the social media policy.  

The NLRB determined that the social media policy was not too broad and that the Employee was lawfully discharged.

The NLRB came to the conclusion that "the social media policy’s savings clause, which provides that “[n]othing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment,” further ensures that employees would not reasonably interpret any potentially ambiguous provision in a way that would restrict Section 7 activity."

It also found that the Employee's actions were not concerted activity for mutual aid and protection within the meaning of Section 7 of the NLRA.  
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