Saturday, April 19, 2014 · 8:38 p.m.

The National Labor Relations Board and employers' social media policies

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The law firm of Summers & Wyatt will begin to discuss, on a biweekly basis, legal topics for the purpose of informing the public of timely issues that may assist it in understanding the status of various issues in the legal system.

As the use of social media sites like Facebook, LinkedIn and Twitter have exploded, employers have grown increasingly concerned about employees using such sites to discuss work-related matters. Employers have responded by disciplining employees for their use of social media and by developing and implementing rules or policies designed to limit what employees might say on social media about their employer, their workplace or maybe even their customers.

The problem is that some of the discipline that has been imposed and some of the rules/policies that have been put into place have gone too far and have attempted to prohibit communication or have been interpreted to prohibit communication that is protected by federal law (if not some state laws as well but, for purposes of this article, we will focus solely on the federal aspect).

Sometimes, the employer’s efforts may be well-intentioned. Other times, the employer may be simply attempting to stretch the bounds of what the law allows. Regardless, Section 7 of the National Labor Relations Act (29 U.S.C. §157) permits employees to engage in what is commonly called "protected concerted activity." In addition to giving employees the right to organize, join or assist labor unions, Section 7 specifically allows employees to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Phrased differently, Section 7 allows employees to interact in order to improve their pay and working conditions or fix job-related problems. This means that co-workers are permitted to discuss the terms and conditions of their employment, even on Facebook and even if they aren't in a union. This last point is important because some nonunion employers either do not know, or maybe just choose to ignore, the fact that the National Labor Relations Act still at least partially applies to them.

The National Labor Relations Board is the federal agency that administers and enforces the National Labor Relations Act. Recognizing that employers have increasingly expanded their work rules or policies to apply to social media and that some employers have utilized employees’ posting on social media as grounds for discipline (up to and including discharge), the NLRB has gotten more interested in social media-related issues and cases. After some of the initial decisions by the NLRB regarding social media were criticized as confusing or difficult to understand how they might apply in a broader context, the NLRB issued three reports (most recently in May 2012), offering guidance and even specific examples of employer policies that do or do not comply with federal law. Included in the policies approved by the NLRB are the following:

—prohibiting “harassment, bullying, discrimination or retaliation,” even at home or after business hours

 —informing workers that they are “more likely” to resolve complaints by speaking with co-workers or going through the company, rather than posting grievances

—forbidding “inappropriate postings,” specifically threats of violence or discriminatory remarks 

—instructing employees not to reveal trade secrets or confidential information, provided that the employer detail the kind of information it means in order to make it clear that the policy is not intended to restrict Section 7 rights

From the decisions and reports of the NLRB thus far, it seems that an employer’s social media policy has a better chance of being upheld as lawful if the policy provides specific examples of what is and what is not acceptable conduct. Otherwise, the employer runs the risk that, regardless of how well-intended it may have been, the policy might be interpreted as overbroad.

A note of caution bears mentioning here: Relying upon the guidance issued by the NRLB, including the recent specific examples, is not a guarantee of compliance with the law. The NLRB’s rulings are subject to review by federal appellate courts, and those courts have the final definitive word on whether a particular social media policy is legal. Although the opinion of the NLRB obviously carries some weight with the courts, it is not conclusive—the courts may disagree. An employer is therefore wise to consult with counsel on whether the company has a social media policy or if it is contemplating developing one—and especially if it is considering disciplining an employee for having supposedly violated its social media policy. For similar reasons, an employee who feels unduly restrained by an employer’s social media policy or who in fact has been disciplined for allegedly violating an employer’s social media policy would be wise to consult with counsel.

The recent decisions and reports by the NLRB serve as reminders that co-workers engaged in protected concerted activity are no less protected by the law when they are engaged in such discussions online via social media than they are when such discussions occur in person or over the phone. Of course, discussions that occur online via social media may be visible to a much broader audience, and so employers have limited rights to assert themselves in order to protect legitimate employer interests such a trade secrets and confidential business information. Nevertheless, the NLRB may well deem a social media policy to be overbroad and thus in violation of federal law if it could be reasonably construed to encompass communication protected by Section 7. If the social media policies reviewed to date are any guide, then apparently a lot of social media policies out there right now violate the law.

For more information on the topics discussed, visit the firm’s website at www.summersandwyatt.com or call 423-265-2385. The opinions expressed in this column belong solely to the author, not Nooga.com or its employees.

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