Where the law protects workers’ rights to organize, rules written in vague language create confusion and do not allow the law to carry out its purpose. This phenomenon can be observed in the introduction of social media to labor and employment contexts. A key element in worker organization is communication and social media provides yet another way for workers to become better informed about their workplace environment. However, in an effort to regulate the social media communication of their employees, some employers like Stop & Shop have adopted new rules which prohibit employees from having conversations through social media about “confidential information.” In response, the United Food and Commercial Workers Union, Local 1500 filed a complaint with the National Labor Relations Board alleging that the new social media rules violate workers’ NLRA Section Seven rights.
The union argues that “confidential information” includes such issues like wages and benefits. Banning these topics would be a violation of NLRA Section Seven rights. The social media rule also bans discrediting the products sold by the employer. Perhaps the most troublesome part of the rule, however, is that it applies not only to public communications but also to communications between coworkers. Limiting these conversations would discourage workers from discussing topics that are fundamental in the process of organizing. If the rule applies so broadly, the practical problems would be that one worker would not be able to speak about his compensation to another worker so there would be no way for him to compare and figure out whether discrimination is taking place. When asked about the legality of the new rule, Stop & Shop management stated that the rule does not violate the employee’s First Amendment rights and that it includes language that states that NLRA rights still exist in social media.
The two sides will battle the issue administratively in the NLRB and possibly in litigation thereafter, however, even if the rule is eliminated, some damage to workers’ rights is already done. The damage is caused by the confusion that the rule created. Whether or not Stop & Shop disciplines an employee for not adhering to the rule, employee conduct will certainly change because of it. The language of the rule is very broad because it fails to define what “confidential information” constitutes and because it fails to explicitly exclude information like wages and benefits from “confidential information.” In a situation where the rules of the workplace are not well defined, the common worker would rather be safe rather than sorry. He or she is probably not willing to risk employment penalties by writing a message on social media websites. In this way, even if the rule itself is not meant to discourage communication protected by Section Seven of the NLRA, it will have a deep chilling effect.
This is one example of how an overly broad and undefined law can be more harmful to workers’ rights than one that is well written and defined. If the new rule were clear about tis applicability, workers would know which issues should be kept off of social media communications. Furthermore, if the law was written with clear definitions and applications, employers could not impose rules that violate existing law like the NLRA because they would be challenged and overruled immediately. Therefore, if an employer wants to fight the organization of its employees, the best thing for them to do is to write a rule that creates confusion like the one Stop & Shop has implemented.
The applicability of the rule will be defined through litigation and the union will probably prevail in protecting the rights guaranteed by the NLRA, but the practice of creating vague rules to discourage workers’ organization will probably remain unaddressed. To eliminate the anti-union practice, the NLRB needs to address the legality of badly defined provisions that create confusion in organizing efforts. Social media can be a powerful tool for employees to organize because of its tremendous ability to disseminate information quickly. However, this practice is being chilled by rules that prohibit undefined conduct which may or may not include social media communications.
To find an article discussing the facts of the case, click here.