conclude that the policy prohibited them from protesting Costco's treatment of its employees, particularly since it included no language excluding protected com- munications. The NLRB further explained that where a challenged policy does not explicitly restrict Section 7 rights (as in Costco), the violation is dependent upon showing: (1) employees would reason- ably construe the language to prohibit Section 7 activity; (2) the rule was pro- mulgated in response to union activity; or (3) the rule had been applied to restrict the exercise of Section 7 rights. In terminated after posting photos of a car accident at his employer's neighboring dealership to his Facebook page with the caption: "This is your car. This is your car on drugs." The NLRB agreed with the ALJ's finding that the posts were not protected, but rather "a lark," that was neither a communication with a coworker nor related to any term of employment. The ALJ did rule, however, that later posts of photos of what the employee and a coworker discussed as "cheap refresh- ments" served at a promotional event were protected because they were part of an employee discussion and related to compensation. The NLRB did not employee was terminated solely due to unprotected activity. Decisions in Hispanics United (unlaw- ful discharge for Facebook conversation employer considered "bullying conduct") and Design Technology Group (unlawful termination for Facebook "protest" about working late hours in unsafe neighbor- hood) followed in December 2012 and April 2013, respectively. view of what constitutes protected social media activity considering it the modern- day equivalent of "water cooler" speech. adjudication, drafting a policy. A full discussion of their analyses is beyond the scope of this writing, but some key general principles emerge. following examples of policies deemed unlawful because "overly broad" and potentially "chilling" to an employee's right to engage in protected speech: 1. "Blanket" bans prohibiting: products. "inappropriate" photos of em- ployer or coworkers. authorization). information is included). rization. employees or to attach disclaimers to personal posts. |