The takeaway: These cases illustrate that colleges and universities must act cautiously when establishing social media policies or when considering disciplining employees for comments made on Facebook, Twitter, or any other social media outlet. To this end, understanding the difference between protected and unprotected activity under Section 7 of the Act is essential. If criticism of the institution could reasonably be viewed as a protest against wages, hours, or working conditions, it is protected under Section 7 of the NLRA. More importantly, these cases also illustrate that the NLRB will continue to closely scrutinize employee handbooks and invalidate any policy that could potentially be interpreted to prohibit employees from engaging in activity protected under Section 7 of the Act. As a result, colleges and universities should revisit their social media policies and pay close attention to overbroad policies that could be construed as violating their employees’ Section 7 rights.
Another area where recent NLRB decisions affect colleges and universities is internal investigations. As most higher education professionals know, confidentiality is essential in investigating internal disputes and grievances. A university’s investigation of wrongdoing can be seriously compromised if involved parties begin discussing the particulars of the investigation with others while the investigation is ongoing. Despite the importance of safeguarding confidentiality, the NLRB has held that such policies may violate the NLRA.
In Banner Health Systems,  the Board found a violation of the Act when one of the employer’s Human Resources (“HR”) staff asked an employee not to discuss the matter under investigation with his co-workers. The case arose when a hospital technician refused to follow his supervisor’s orders to clean surgical instruments with hot water from a coffee machine. During the investigation, the hospital’s HR staff instructed the technician not to discuss the matter with other employees. The HR staff made this request as a matter of course in all of the hospital’s internal investigations.
The Board took issue with the employer’s confidentiality instruction and use of a preprinted interview form with “instructions for all interviews” that contained a request that employees not discuss the investigation with others. The Board held that an employer could only make such a request on a case-by-case basis after first determining that “witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.” Notably, the Board found that maintaining the integrity of the investigation was not a sufficient justification. Because the employer enforced the blanket confidentiality rule, the Board held that it violated employees’ rights to engage in Section 7 activity.
This case illustrates the need for colleges and universities to re-examine their policies and protocols regarding the confidentiality of investigations. Seemingly, any blanket prohibition on discussing ongoing investigations with other employees could constitute a violation of the Act.  The other noteworthy aspect of this case is that it was filed by an unrepresented, individual employee—not a union or a lawyer—and contained no allegations of any union activity. This further emphasizes that the NLRB is increasingly focused on non-union employers and that non-union employees are now petitioning the NLRB for assistance in what were once run-of-the-mill employment disputes.
Under the Act, employers are allowed some freedom to limit union solicitation by employees on their premises, subject to a variety of restrictions.  With regard to the particular question of whether or not an employer can stop off-duty employees from returning to work to engage in solicitation, the Board has long held that an employer can maintain a policy that restricts off-duty employees from returning to work to engage in solicitation, provided that it applies the rule uniformly and provided that the employer does not allow access for other purposes.  Recently, however, the Board has made it more difficult for employers to enforce such policies.
The very nature of the physical workplace in higher education is unique. Unlike employers who operate in confined settings like factories, retail stores, or corporate office buildings where employees are easily identifiable, most colleges and universities are located on campuses with many buildings and other areas that are often open to the public. In the higher education setting, the boundaries of work areas and even the identity of employees can be difficult to discern at any given time. For this reason, many institutions craft policies that attempt to define the boundaries of access that employees have while on-duty and off-duty.
The Board has now ruled that it will apply such policies very narrowly. In Sodexo America LLC,  the Board ruled that a university hospital’s off-duty access policy violated employees’ Section 7 rights under the Act. The policy at issue prohibited off-duty employees from entering the hospital unless they were visiting a patient, receiving medical treatment, or conducting “hospital-related business,” which the hospital’s handbook defined as “the pursuit of the employee’s normal duties or duties as specifically directed by management.”
The Board took issue with the “specifically directed by management” language of the policy, finding that it provided the hospital with “unlimited discretion to decide when and why employees may access the facility.” The Board read the rule on its face as prohibiting employee access for purposes of engaging in Section 7 activity—such as picketing and distributing pro-union literature—while permitting access for other reasons as specified by management. It further reasoned that such a policy lacked uniformity in the sense that it did not prohibit off-duty access entirely; rather, it prohibited access only when not “specifically directed by management.” The Board found that this broad language gave the Hospital “free rein to set the terms of off-duty employee access,” which violated the Act. In J.W. Marriott,  decided two months after Sodexo, the Board struck down a similar rule that dealt with access by off-duty employees, finding that the policy gave the respondent “unlimited” discretion to decide when and why employees could access the facility.
The Sodexo and J.W.Marriott rulings are easily transferable to a campus setting. Because a policy prohibiting employees from entering an employee’s facility except when directed by management violates the Act, it is likely that a policy prohibiting off-duty university employees from being on campus or in campus buildings unless authorized by a supervisor would also violate the Act. Sodexo and J.W. Marriott also highlight the NLRB’s willingness to construe access policies against employers and essentially ignore the purpose or intent behind the rule. Thus, even if a university had legitimate reasons for restricting off-duty access—such as campus safety—as long as a rule could be read to interfere with employees’ Section 7 rights, it may very well be deemed unlawful.
Much to the surprise of many employers, the NLRB has even criticized an “at-will” disclaimer similar to comparable statements contained in nearly every employee handbook. Such a policy statement is important because it often prevents an employee handbook from being construed as an employment contract and makes clear to non-tenured employees that their employment is terminable at the will of the employer or employee at any time. Although the Board has not issued a binding decision invalidating at-will policies, various officials within the NLRB have taken the position that they may violate employees’ Section 7 rights. 
Earlier this year, the NLRB’s Phoenix Regional Office issued a complaint against Hyatt Corporation based on allegedly overbroad provisions in an employee handbook acknowledgment. Specifically, the NLRB’s General Counsel alleged that three extremely common provisions were overly broad and discriminatory: (1) “I understand my employment is ‘at will,’” (2) “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and Hyatt’s president or executive vice president/COO,” and (3) “[T]he at-will status of my employment . . . can only be changed in a writing” signed by the employee and one of the two Hyatt executives.
The issuing of the Hyatt complaint was a direct response to an NLRB ALJ decision that ruled that the American Red Cross had violated the Act by using a similar at-will acknowledgment.  The rationale underlying these allegations, as stated by the ALJ, is that requiring an employee to sign such an acknowledgement is “essentially a waiver in which an employee agrees that his/her at-will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at-will status.” 
On October 31, 2012, the NLRB Division of Advice issued two memoranda addressing at-will employment policies.  Both memoranda involved policies that NLRB Regional Offices had alleged could chill employees’ exercise of their Section 7 rights because of their overbreadth. The policy in the first advice memorandum stated as follows:
“No manager, supervisor, or employee of [the Company] has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.”
The policy in the second memorandum stated:
“No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. Nothing contained in this handbook creates an express or implied contract of employment.”
In a rare, yet non-binding, “victory” for employers, the Division of Advice concluded that neither policy would “reasonably be interpreted to restrict an employee’s Section 7 right to engage in concerted attempts to change his or her employment status,” because all they did was limit employers’ representatives from entering into separate employment agreements with employees. Absent evidence of interference with employee rights and without any overt statements targeting Section 7 rights in the policies themselves, the Division of Advice found that both policies were lawful. However, the Division of Advice also acknowledged that its new guidance contradicted American Red Cross and the Hyatt complaint. With the law in this area unsettled, the memoranda directed the NLRB Regional Offices to submit all cases that involved similar at-will employee handbook provisions to the Division of Advice.
Although the NLRB’s decisions and guidance with regard to at-will employment provide no clear rule, at-will policies are clearly on the NLRB’s radar and should be subject to further scrutiny. At some point, an employer will likely challenge an NLRB ruling that declares a particular at-will acknowledgment “unlawful,” which should provide useful guidance to employers and employees about the scope of these policies. Until then, colleges and universities should re-examine their at-will policies to ensure that they comply with the NLRB’s latest guidance. The NLRB’s aggressive enforcement in this area is further evidence of the NLRB’s expanding reach beyond unionized workplaces.
Like any other employer, colleges and universities should consider the Board's recent decisions on employment policies and make thoughtful decisions about how, if at all, to change their current policies, recognizing that there may be some risk if policies that have been the subject of NLRB scrutiny are challenged. Maintaining an up-to-date employee handbook that complies with these recent decisions (or at least takes them into account) will help keep colleges and universities out of the NLRB’s crosshairs. More specifically, counsel should familiarize themselves with employees’ Section 7 rights under the NLRA and carefully scrutinize any aspect of any employment policy that could interfere with such rights. The NLRB has established that it will interpret those rights broadly and what may be considered a strained interpretation of Section 7 to an untrained eye may ultimately be deemed unlawful by the Board. In short, colleges and universities must tread cautiously in this area in adopting employment policies or practices that could infringe upon employees’ Section 7 rights.
1. As an agency, the NLRB is organized into two departments: The Board and the Office of the General Counsel. Regional Directors, which fall under the jurisdiction of the Office of the General Counsel, investigate and decide issues related to union representation. Administrative Law Judges (“ALJs”), which fall under the jurisdiction of the Board, hear and decide issues related to violations of the Act called unfair labor practices. The Board hears appeals of decisions of both Regional Directors and ALJs. For a helpful illustration, see the NLRB’s organizational chart.
2. In 2012, only 11.3% of all U.S. workers were union members, including only 6.6% of all private sector workers. Bureau of Labor Statistics, Union Members Summary (Jan. 23, 2013). In 1953, 35% of all U.S. workers belonged to a union. Theodore St. Antoine, Charles Craver, and Marion Crain, Labor Relations Law: Cases And Materials at 17 (11th ed. 2005).
3. The NLRA applies to private universities but not to public universities. However, state labor laws—which do apply to public universities—often mirror the NLRA, and state labor boards closely follow NLRB precedent. Therefore, while not binding on public universities, NLRB decisions are still highly relevant to public institutions.
5. The posting requirement has been bogged down in litigation since the Board first attempted to impose it in 2011. It has not gone into effect and thus far no employer is required to comply with the Board’s posting requirement. A recent decision of the U.S. Court of Appeals for the D.C. Circuit struck down the requirement as beyond the Board’s power. National Association of Manufacturers v. NLRB, (Case No. 12-5068; May 7, 2013). The U.S. District Court for the District of South Carolina has similarly ruled. Chamber of Commerce v. NLRB, 856 F. Supp. 2d 778 (D.S.C. 2012)
6. See Peter Schmidt, House Republicans Denounce Federal Labor Board’s Actions as Threatening Colleges, The Chronicle Of Higher Education (Sep. 12, 2012).
7. NLRB Case No. 06-RC-012276.
8. 444 U.S. 672 (1980).
9. NLRB Case Nos. 2-RC-23481 and 29-RC-12054.
10. No. 12-1115, slip. op. (D.C. Cir. Jan. 25, 2013).
11. Since Noel Canning, the Third Circuit Court of Appeals has also invalidated a Board decision on the grounds that it was signed by a Board member whose recess appointment was unconstitutional. NLRB v. New Vista Nursing and Rehabilitation, LLC, No. 11-3440, slip. op. (3d Cir. May 16, 2013). New Vista Nursing casts doubts on the validity of any Board decision signed by member Craig Becker, who was appointed in March 2010. See Doug Hass and Chris Johlie, Third Circuit Invalidates President Obama’s Appointment of former NLRB Member Becker; Becomes Second Appellate Court To Rule NLRB Recess Appointments Unconstitutional (May 17, 2013).
12. For a more detailed discussion of this case, see Doug Hass, D.C. Court of Appeals Rules NLRB Recess Appointments Were Unconstitutional; Calls into Question Hundreds of Decisions Issued Last Year (Jan. 25, 2013), and Doug Hass, Noel Canning Aftermath: Perspectives for Employers Three Weeks after D.C. Circuit’s Important NLRB Decision (Feb. 18, 2013).
13. Colleen Flaherty, Status Quo at NLRB (Jan. 28, 2013). The Supreme Court granted the petition for certiorari on June 24, 2013.
14. 29 U.S.C. § 157.
15. Most state labor laws contain similar protections for public employees.
16. For a more detailed discussion of employees’ Section 7 rights, see The Developing Labor Law (6th ed.), Chapter 6.I.B.: Section 7—Rights of Employees (2012).
17. 358 NLRB No. 106 (2012). For a more detailed discussion of this case, see Neil Goldsmith and Jackie Wernz, National Labor Relations Board Finally Weights in Social Media Policies (Sep. 21, 2012).
18. The Costco ruling is consistent with previous non-binding advice memoranda on social media policies issued in August 2011, January 2012, and May 2012 by the NLRB General Counsel’s Office. See NLRB Operations-Management Memos. The May 2012 memorandum rejected 6 social media policies as overbroad but held that a Wal-Mart social media policy was lawful. However, it is difficult to objectively distinguish between the Wal-Mart policy and the rejected policies, leaving little guidance for employers who wish to adopt a lawful policy.
19. 358 NLRB No. 164 (2012). For a more detailed discussion of this case, see Josh Meeuwse and Jennifer Dunn, NLRB Finds That Employer Lawfully Fired Employee Over Facebook Posts, But Its Courtesy Policy Violated The NLRA (Oct. 4, 2012).
20. The NLRB held that the employee’s posts about the Land Rover incident were not protected because they had no connection to his or other employees’ terms and conditions of employment. The evidence showed that the employer discharged the employee because of the posts about the Land Rover incident and not because of his posts about the cheapness of the event; so consequently, his discharge did not violate the Act. Although the ALJ found that the employee’s posts about the cheapness of the event were protected, he did not find liability because the employee was not discharged for these posts.
21. 359 NLRB No. 37 (2012).
22. 359 NLRB No. 54 (2013).
23. The Division of Advice falls under the jurisdiction of the Office of the General Counsel. Its memoranda are non-binding and solely reflect the views of the Office of the General Counsel, and not necessarily the Board or the NLRB as a whole.
24. It should be noted that, despite its reach, the NLRA does not protect individual employees who complain about their own personal dissatisfaction with their employer. Thus, in one case cited by the NLRB’s General Counsel in his first advice memo, he wrote:
We concluded that the employee’s Facebook postings were an expression of an individual gripe and were not concerted.… They contained no language suggesting the employee sought to initiate or induce his coworkers to group action; rather they expressed only his frustration regarding his individual dispute with his Assistant Manager….
August 2011 Memorandum. In another case, a bartender had complained about his employer’s tipping policy, specifically that waitresses do not have to share their tips with bartenders. The bartender had a conversation with a relative one night on Facebook and, in response to an inquiry about how his job was going, he posted that he hadn’t had a raise in five years; complained about the tipping policy; that the customers were all “rednecks;” and that he hoped they choked on glass as they drove home drunk. He did not discuss his posting with any coworker. He was ultimately fired for his posting. In finding that the termination did not violate the Act, the Board noted:
The Board’s test for concerted activity is whether activity is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” We found no evidence of concerted activity here. Although the employee’s Facebook posting addressed his terms and conditions of employment, he did not discuss the posting with his coworkers and none of them responded to his posts. There had been no employee meetings or any attempt to initiate group action concerning the tipping policy or raises.
August 2011 Memorandum.
25. 358 NLRB No. 93 (2012). For a more detailed discussion of this case, see Doug Hass, In Another Attack on General Employment Policies, NLRB Nixes Confidential Workplace Investigations (Aug. 6, 2012).
26. However, the failure to keep an allegation of misconduct confidential could lead to a defamation claim. Thus, employers may want to weigh the risk of an NRLB charge with that of a defamation claim for failing to keep a matter confidential.
27. See Nicholas DiGiovanni, NACUANOTES Vol. 4, No. 3, Non-Solicitation Rules and Union Organizing under the National Labor Relations Act (2006) for a detailed review of the permissible scope of employer solicitation rules under the Act.
28. Tri-County Medical Center, 222 NLRB 1089 (1976).
29. 358 NLRB No. 79 (2012). For a more detailed discussion of this case, see Neil Goldsmith and Chris Johlie, National Labor Relations Board Finds Off-Duty Access Policy Violates Workers’ Rights (Jul. 13, 2012).
30. 359 NLRB No. 8 (2012).
31. For more detailed discussions of NLRB regulation of at-will employment policies, see Doug Hass, Recent NLRB Division of Advice Memoranda Regarding At-Will Disclaimers Helpful, but More Guidance Needed (Nov. 6, 2012) and Doug Hass, NLRB Broadens Challenges to Employers, Probes At-Will Employment (Jul. 18, 2012).
32. American Red Cross, 2012 WL 311334 (N.L.R.B. Feb. 1, 2012).
33. In June 2012, NLRB Acting General Counsel Lafe Salomon confirmed this approach. Speaking at the Connecticut Bar Association’s annual meeting, he indicated that the NLRB has identified at-will employment policies as the agency’s next enforcement target. He stated that if an employee could reasonably believe that an at-will employment clause means that an employee could not change his or her at-will status even by seeking union representation and a collective bargaining agreement, then such at-will clauses would chill employees’ exercises of their Section 7 rights.
34. See Rocha Transportation, NLRB Case No. 32-CA-086799; Mimi’s Café, NLRB Case No. 28-CA-084365.