Many employers have company non-public intranet sites allowing employees to communicate with the company and each other on matters of interest. A recent National Labor Relations Board (NLRB) decision involving Lush Cosmetics discusses problems with its intranet site called the "Hive." Lush Cosmetics, LLC, 372 NLRB No. 54 (Feb. 10, 2023).
The purpose of the "Hive" is to share general news and guidelines with employees, and employees can respond, like, and comment on the employer's post, as well as engage in discussion with each other. There is a usage policy for the Hive which states that the employer "welcomes all respectful thoughts and musings" but has "zero-tolerance for defamatory and/or personal attacks on anyone in the Lush Community." The usage policy contains content guidelines requiring postings to be professional, work related and secure.
A particular employee posted comments that addressed various corporate restructuring and described the employer's officials as "vultures" and its CEO as a "scumbag" and posted comments on the employees' working conditions and the need for union representation. The post told the employer to stop harassing employees who want to join a union and highlighted the employees' need for living wages.
The employer's Human Resources representative wrote a letter to the employee referring to the posts and indicated they appeared to be intended to disparage the company and its managers. The letter indicated that posting unsubstantiated allegations on the Hive is not acceptable and in the future the employee is asked to refrain from making unsubstantiated allegations on the Hive. The employee was warned that if he continued such inappropriate conduct, the company may consider his actions to amount to misconduct. The company did indicate that for the purpose of further clarity, he may continue to express his views concerning unionization on the Hive.
The employee ultimately resigned even though he was not further disciplined for the post and filed unfair labor practice charges with the NLRB. The NLRB determined that the statements in the letter should be analyzed as an allegedly unlawful threat under the Board's totality-of-circumstances standard. The Board analyzed the letter to the employee under this standard and found that the letter could easily be understood as a warning against communicating with fellow employees about terms and conditions of employment on the Hive. Because the letter suggested that future postings about employees' terms and conditions of employment on the Hive would result in discipline or other unspecified reprisals, it was found to be an unfair labor practice and the employer was ordered to post a notice that stated, among other things, that it will not threaten unspecified reprisals if an employee engages in protected concerted activities.
In another recent case, Apple, a major technology company has been hit with unfair labor practice complaints, accusing the company of maintaining work rules that "prohibit employees from discussing wages, hours, or other terms and conditions of employment." These complaints not only attacked policies in Apple's employee handbook, but also claimed that Chief Executive Officer Tim Cook sent emails restricting staff from disclosing "business information" that could be interpreted to mean just about anything.
Editor's Note - The analysis in this case is similar to that of other cases dealing with social media. However, the circumstances are more serious in that the alleged concerted activity occurred on the employer's own intranet system. The strategy and rules in setting usage guidelines and handling such situations are quite technical and controversial, and so advice of counsel is necessary. A few employers have gone so far as to discontinue their intranet systems.
This article is part of our March 2023 Newsletter.
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