Social media websites, such as Facebook, Twitter, and personal blogs, give employees an unprecedented opportunity to spread unflattering or even financially damaging information about their employers to a wide audience. For this reason, employers are increasingly adopting personnel policies addressing employee use of social media, and these policies typically provide guidelines for social media use and flatly prohibit certain types of communications, such as those disparaging the employer or its managers and supervisors. Although these policies are usually adopted out of legitimate concerns about protecting the employer's business reputation and confidential information, they may unwittingly run afoul of a federal law that many employers incorrectly assume does not apply to them, the National Labor Relations Act ("NLRA").
The NLRA grants employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. In simple terms, this means that, among other things, employees have a statutory right to discuss among themselves wages, hours, and working conditions as a precursor to joint action with respect to those subjects. Employer actions that interfere with that right, such as the adoption of a rule that prohibits or discourages such discussions, are generally unlawful under the NLRA. A common misconception is that the NLRA applies only to unionized workplaces and to workplaces that are undergoing union-organizing efforts. To the contrary, the NLRA protections apply to employees in most private-sector workplaces, regardless of whether there is a union in the picture.
On May 30, 2012, the National Labor Relations Board ("NLRB"), the agency that enforces the NLRA, put out its third report on social media communications. This latest report summarizes the position of the NLRB's Office of the General Counsel on seven recently filed unfair labor practice charges, each alleging that an employer's social media policy interfered with employees' rights under the NLRA. Because the report addresses specific provisions of the policies and explains why they do or do not violate the NLRA in the opinion of the NLRB's Acting General Counsel, the report provides a much-needed road map for employers seeking to develop policies that lawfully govern employees' social media use. We discuss the most significant aspects of the NLRB report below.
Ambiguity Without Limiting Language Is Unlawful
The NLRB report emphasizes that broadly worded and ambiguous social media policies that can reasonably be interpreted by employees as applying to NLRA-protected activities and communications are unlawful. For example, a policy prohibiting employees from releasing “confidential … team member or company information” is ambiguous because it can reasonably be interpreted as prohibiting employees from online discussions about such things as wages and other employment conditions, which employees are entitled to discuss with one another under the NLRA. Similarly, a policy prohibiting “[o]ffensive, demeaning, abusive or inappropriate remarks” is unlawful because it could reasonably be interpreted to include protected criticisms of the employer or its supervisors. The NLRB report advises that when a provision in a social media policy is so broadly worded or ambiguous that it could reasonably be interpreted as restricting NLRA-protected communications, it must be accompanied by language or examples that make it clear the provision does not apply to protected conduct, or else the policy will be found violative.
Prohibitions That Specifically Cover Protected Activities Are Unlawful
According to the NLRB report, rules prohibiting employees from posting “[p]ersonal information about another employee, such as . . . . performance, compensation, or status in the company” directly violate the NLRA, as such communications relate to the terms and conditions of employment and are precisely the type of communications among employees that are protected under the NLRA.
The NLRB has long held that policies that require seeking an employer’s permission before engaging in NLRA-protected activities are unlawful. Thus, policies that require or even encourage employees to seek the employer's approval before engaging in any social media posting regarding the employer are unlawful, according to the NLRB report, because such a provision would cover NLRA-protected comments about the employer's labor practices. Further, the report states that requiring employees to report “any unusual or inappropriate internal social media activity” is unlawful because that provision could reasonably be construed as requiring employees to report union activities or other protected concerted activities of fellow employees, a requirement that would violate the NLRA.
The report takes the position that prohibiting any online comment on legal matters violates the NLRA, as such a prohibition would include discussions regarding potential labor and employment claims against the employer – discussions that would, in most cases, be protected by the NLRA.
The report also advises that prohibiting or discouraging employees from airing their employment-related grievances online would violate the NLRA because employees have a general right under that law to publicize their labor disputes with the general public and to seek redress for their grievances through forums other than an internal dispute-resolution procedure provided by the employer.
“Savings Clauses” Are Ineffective
Adding a clause at the end of a social media policy that states something to the effect of “[t]his policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the [NLRA]” will not be an effective cure for otherwise unlawful provisions of the policy, according to the NLRB report.
Lawful Prohibitions and Requirements
The NLRB report identifies several provisions in the challenged social media policies that the Acting General Counsel concluded were lawful under the NLRA. These provisions include those -
Practical Implications for Employers
The NLRB report on social media policies does not represent the final word from the NLRB on those policies. Instead, it represents the opinions of the Office of the General Counsel, the branch of the NLRB that prosecutes unfair labor practice charges under the NLRA. Those opinions are not binding on the NLRB when it acts in its adjudicatory role. However, with the law still developing on the application of the NLRA to social media policies, the report does provide helpful guidance for avoiding potential NLRA issues when drafting such policies.
Before issuing a policy governing employees’ use of social media, employers should carefully analyze whether the policy might violate the protections afforded by the NLRA. Employers should avoid broad proscriptions that could reasonably be interpreted as covering communications protected by the NLRA. When broadly worded prohibitions are unavoidable, the inclusion of specific examples of the types of conduct intended to be covered can, if properly worded, clarify the meaning of the broad provision and render it harmless under the NLRA.
Even with the detailed guidance on social media policies provided by the NLRA report, employers should proceed with caution in developing those policies and should seek legal advice when appropriate, as the law under the NLRA governing social media policies is still developing.
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