Thursday, March 16, 2017

Appellate Court Issues Mixed Decision Regarding Sheriff’s Gang Affiliation And Social Media Policies

In a mixed decision, the Illinois Appellate Court First District recently found in International Brotherhood of Teamsters, Local 700 v. The Illinois Labor Relations Board, Local Panel, et al. that while the Cook County Sheriff’s Office cannot impose a work rule that its employees disclose gang affiliations of friends and family members, it can implement and enforce a social media policy that prohibits employees from discrediting the Sheriff’s Office. The decision is somewhat surprising because courts often upheld safety and security policies such as the general order concerning gang affiliation as a matter of inherent managerial policy but generally scrutinize social media policies as overbroad and an infringement on protected activity. The result in International Brotherhood of Teamsters, Local 700 was the exact opposite of the current trend.

This case arose from a decision and order of the Illinois Labor Relations Board upholding two general orders issued by the Sheriff concerning gang affiliations and social media. The first general order prohibited employees from associating with anyone the employee knew or should have known is or was in a gang and required the employee to complete a disclosure form. The second general order set forth guidelines for acceptable conduct – on or off duty – related to employee use of social media. Teamsters claimed they issued a demand to bargain over the two general orders but the Sheriff never replied. Thereafter, Teamsters filed an unfair labor practice charge, initially claiming that both orders were unlawful unilateral changes to terms and conditions of employment without notice or the opportunity to bargain, though it later amended its position to maintain that only the Gang Order was a subject of mandatory bargaining. Teamsters additionally asserted in its unfair labor practice charge that the social media policy contained overbroad restrictions on employee use of social media.

Relying on Central City Education Association v. Illinois Educational Relations Board, the seminal case that set forth the three-part test for determining whether a matter is subject to mandatory bargaining, the Administrative Law Judge found that the gang-affiliation problem was dire enough to allow the Sheriff to impose the order without mandatory bargaining. The Administrative Law Judge also cited the 1993 Illinois Streetgang Terrorism Omnibus Prevention Act, which describes gangs as a “clear and present danger” as well as the ongoing violence in and around Chicago. Because the gang order fell under its inherent managerial authority, the Administrative Law Judge reasoned that the Sheriff did not have to negotiate over the gang order. On the other hand, the Administrative Law Judge found that the Sheriff’s social media policy was unlawfully overbroad because it gave the appearance that protected activity was prohibited and did not provide explicit limiting language.

On appeal, the Appellate Court reversed both of the Administrative Law Judge’s findings. In finding that the gang order violated the Illinois Labor Relations Act, the Appellate Court explained that although gang affiliation was an important concern, both the documentary and testimonial evidence showed gang affiliation was not an ongoing problem. The Appellate Court also found that the Sheriff should have bargained over the gang order because it triggered a change in working conditions, e.g., employees could be disciplined for failing to disclose any gang affiliation which was a substantial departure from prior general orders. In other words, the gang order was a mandatory subject, and as a result, the Sheriff’s refusal to bargain was found to violate the Illinois Public Labor Relations Act.

With respect to the Sheriff’s Office social media policy, the Appellate Court found that the social media policy did not violate the Illinois Public Labor Relations Act. In upholding the Sheriff’s social media policy, the Appellate Court relied on Lutheran Heritage Village-Livonia - NLRB, a decision from the National Labor Relations Board that found an employer rule can be considered unlawful if employees would “reasonably construe the language to prohibit” or has actually been used to restrict protected rights, to find that the policy was not overbroad on its face. The Appellate Court explained that the mere possibility that employees could interpret the policy to prohibit protected activity was insufficient to establish a violation of the Illinois Public Labor Relations Act. Indeed, the Appellate Court noted that the Teamsters may be correct that employees could interpret the social media policy to prohibit protected activity, but the mere possibility that employees could interpret the policy that way is not enough to establish a violation. To that end, the Appellate Court essentially provided the Sheriff clearance to implement and enforce its social media policy forbidding employees conduct that discredits the department.

The Appellate Court’s decision signals a shift in the assessment of social media policies. The mere belief that protected activity can be obstructed by way of a workplace policy is now insufficient to show a violation of the Illinois Public Labor Relations Act. The decision also strikes at the very heart of an employer’s managerial prerogative because it frustrates an employers ability to unilaterally implement security and safety rules. Now, employers must be cognizant of whether such security and safety rules such as a gang affiliation order impose new opportunities for discipline because it may trigger a change in working conditions and violate the Illinois Public Labor Relations Act.

If you have any questions about this case or need assistance drafting social media policies as well as gang affiliation policies or similar safety related workplace rules, please contact us.