By: Kimberly Shely
It is common knowledge that lawyers have a professional duty to reasonably ensure their employees abide by the Rules of Professional Conduct (RPCs). This ethical duty includes training their employees on how to maintain client confidences. Lawyers need to address proper social media etiquette with their nonlawyer employees to ensure that they understand that “confidential client information” cannot be discussed or shared on their personal social media platforms. However, lawyers must balance these ethical obligations with employees’ legal rights under labor laws. The National Labor Relations Act (NLRA) provides employees protection in engaging in concerted activity to better their working environment, and the National Labor Relations Board (NLRB) has extended this to include social media posts. Lawyers can balance protecting client confidences with their employees’ rights under the NLRA.
Lawyer’s Duties Under the ABA Model Rules of Professional Conduct
The applicable RPCs are Rule 5.3 Responsibilities Regarding Nonlawyer Assistance and Rule 1.6 Confidentiality of Information. Rule 5.3(b) explains that “a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” In particular, Comment 2 clarifies that it is the lawyer’s responsibility to instruct and supervise the nonlawyer employees, “particularly regarding the obligation not to disclose the information relating to representation of the client . . . .” This is consistent with a lawyer’s duties under Rule 1.6(c) to make reasonable efforts to prevent the “unauthorized disclosure of . . . information relating to the representation of a client.” Comment 18 in Rule 1.6 again emphasizes it is the lawyer’s duty to competently safeguard client information, including by those the lawyer has direct supervisory authority over. The NLRA is not an exception to this Rule.
The NLRA Applies to Your Employees, Even Without a Union
The NLRA was created to protect employees in private-sector workplaces and allow them to seek better working conditions without risking retaliation. A key feature of the NLRA is Section 7 in that “[e]mployees shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” A common misunderstanding of the NLRA is the assumption that it only applies to employees that are already in a union or attempting to join a union. However, “concerted activity” protections in Section 7 of the NLRA extend to any employee that meets the statutory definition, regardless of their union status.
The statutory definitions of “employee” and “employer” make it clear that the NLRA extends to nonlawyer employees in a private law firm. NLRA Section 2(3) defines “employee” to include essentially any employee of a particular employer, except for agricultural workers, those working for a family member in domestic services, independent contractors, or a NLRA defined “supervisor.” This broad definition of “employee” would encompass nonlawyer employees described in Comment 2 of Rule 5.3 of the RPCs.
Private law firms, and by extension the lawyers within, would be considered “employers” under the NLRA. The NLRA Section 2(2) definition of “employer” is similarly broad and “includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation . . . or any labor organization . . . .” Nonlawyer employees and lawyers in private law firms meet the NLRA definitions, and therefore Section 7 of the NLRA applies to private law firms.
Your Employees’ Social Media Rights Under the NLRA
Lawyers must be aware that Section 8(a)(1) of the NLRA makes it “an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in section 7.” Again, these Section 7 rights extend to employees who are not represented by a union. An employer can potentially commit an Unfair Labor Practice even without a unionized workplace. The “concerted activity” protections in Section 7 give employees “the right to act with coworkers to address work-related issues in many ways.” Some of the most common examples of “concerted activity” are talking with coworkers about wages, hours, and working conditions in an effort to improve them.
The NLRB established in Hispanics United of Buffalo that Facebook and other forms of social media are a valid platform for Section 7 concerted activity discussions. In this matter, an employee posted on Facebook about her frustrations with a fellow coworker and in that post, the employee asked her other coworkers how they felt about the situation. The employees involved in the Facebook discussion were discharged because of the posts. The Board found that firing these employees violated Section 8(a)(1). It was a violation because the NLRB viewed the Facebook posts as “concerted activity,” which therefore meant it was protected under Section 7.
How to Balance Nonlawyer Employee’s NLRA Social Media Rights with the RPCs
While safeguarding client confidentiality is a core and essential component of lawyers’ duties to their clients, an outright social media ban on any discussion of the workplace will run afoul of the NLRA. In its Boeing Company decision, the NLRB established a two-pronged test to determine whether a facially neutral workplace rule would violate Section 7, and lead to a Section 8(a)(1) violation. The Board reviews two aspects: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”
The NLRB issued an Advice Memorandum regarding an issue with an online disparagement rule from Stange Law Firm. Although the disparagement rule was a violation of Section 8(a)(1), the memo provides guidance on an employer’s use of a “savings clause.”
“For a clause to cure a workplace rule that otherwise has an unlawful impact on Section 7 rights, the Board has said that the clause must do more than generally refer to the Act or Section 7 rights. An effective savings clause should address ‘the broad panoply of rights protected by Section 7‘ as well as be prominent and proximate to the rule that it purports to inform.”
A properly executed “savings clause” should effectively inform nonlawyer employees of their rights under Section 7. This clause should clearly differentiate their Section 7 rights from the rule prohibiting discussions of confidential client information on social media. Lawyers have legitimate justifications in protecting client confidences.
Lawyers should already be providing robust confidentiality training to their nonlawyer employees. Nonlawyer employees should understand that confidential client information under RPC Rule 1.6(a) includes information relating to the representation of a client. This confidentiality training should provide guidance on appropriate social media use. While employees may have a right under the NLRA to discuss wages, hours and working conditions, that right does not give them permission to disclose any information that would identify a specific client or client matter.
By properly training nonlawyer employees on maintaining client confidences, including on their personal social media accounts, lawyers can fulfill their professional obligations under the Rules of Professional Conduct. Lawyers should provide employees with specific examples of what they can and cannot post, and clearly explain what employee’s rights are under Section 7 of the NLRA. Such training will then – hopefully – put lawyers in compliance with both the Rules of Professional Conduct and the National Labor Relations Act.