Court Upholds County Regulation of Employee Social Media Activities
From our sister blog, The Workplace Report with Ancel Glink: Employer May Regulate Employee Social Media Conduct
In one of the first cases of its kind in Illinois, the state
appellate court found that a
Cook County Sheriff’s order regulating employee conduct on social media
platforms was not subject to bargaining. International Brotherhood of Teamsters v. Illinois Labor Relations Board, 2017 IL App (1st) 152993.
The “conduct order” in
question regulated on and off duty conduct by employees and for the first time
included language extending the rule to social media and networking sites. The
order required employees to conduct themselves in a professional manner and not
bring disrepute on the department. While a conduct rule had historically
existed, the Sheriff’s Office amended it to include the following language:
Be aware that conduct on and off duty extends to electronic social media and networking sites and that all rules of conduct apply when engaging in any Internet activity.
The union filed an unfair labor practice charge against the
Sheriff alleging that the new rule was overbroad and violated employee rights
under the Illinois Labor
Relations Act. According to the union, the order had a chilling
effect on protected union activity. For instance, employees often vent about
working conditions on social media platforms with other employees and this
communication may be protected union activity, but the union argued that an employee could be
subject to discipline for legal activities under the new language.
The Local Labor Relations Board held that the conduct order was
not substantively different from a 1998 order issued by the Sheriff regulating
off duty conduct. The new order simply applied it to contemporary means of
communication. Additionally the Board found that no employee had been
disciplined under the rule for communications protected under the Labor Act.
The union appealed and the court agreed with the conclusion of
the Local Labor Board but stated that this is a case of first impression as to
whether any employer work rule violates the Labor Act because it is overbroad on
its face. In interpreting the state law, the court looked to National Labor
Relations Act for assistance. Under the NLRB decisions, a workplace rule that
does not specifically prohibit protected communications may still violate the
act if a reasonable employee believes protected communication is prohibited
under the rule. However, in this case, the court said this is not a subjective test based on the
employee’s interpretation. Instead, the court stated: “We will not conclude that a
reasonable employee would read the rule to apply to such activity (protected
activity) simply because the rule could be interpreted that way.”
Employers should
consult with their attorney before implementing rules governing social media
conduct. Even facially neutral rules may impinge on protected employee rights
if not properly implemented.
Original Post Authored by Steve Mahrt, Ancel Glink
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