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. 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: “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 employee could be subject to discipline for such conduct.
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. The court said this is not a subjective test based on the employee’s interpretation. 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.