NLRB’s Reports on Social Media Policies: When Are Employers Crossing the Line and What Must Employers Consider?

By Hanok George, Albany Government Law Review

Introduction

Social media has become a topic of increasing interest among employers, as the employees’ statements within such media can have wide ranging impacts upon the employer.[1]  These statements can reach millions of people— including customers, venders, suppliers and many others.[2]  Due to the broad sweeping impacts associated with social media, employers have created social media policies for employees that restrict the employees’ ability to divulge work-related information on websites such as Facebook, Twitter, MySpace, etc.[3]  However, these policies walk a fine line between protecting the employer’s interests and infringing on the employees’ rights to concerted activity under Section seven of the National Labor Relations Act (NLRA).[4]  The National Labor Relations Board (NLRB) has found many employers’ social media policies to constitute unfair labor practices.[5]  To provide guidance to employers, employment law practitioners, human resources personnel, and the public, the NLRB has released multiple reports on social media cases that question the lawfulness of a variety of employer social media policies.[6]  The reports evaluate the lawfulness of the policies and discuss policy points that employers must consider in creating their policies.[7]  The reports also demonstrate that this area of the law is undergoing significant evolution, as each case gives further clarification on what an employer can and cannot do.  Moreover, the reports demonstrate that determinations on these cases are “extremely fact-specific.”[8]  Even minor changes in facts can result in different determinations as to whether the employer’s policy or employee’s termination was unlawful.[9]  Based on the NLRB’s current position in these cases, what must employers consider in creating and administering their social media policies?

Section Seven of the National Labor Relations Act

Employers should be very careful about implementing any social media policy that might conflict with Section seven of the NLRA— even if the employer does not have a union presence in the workplace.  Section seven of the NLRA provides:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.[10]

This section gives employees the right to engage in “concerted activity” regarding their employment conditions and makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section [seven.]”[11]

Social Media and the Employee’s Right to Engage in “Concerted Activity”

In the social media cases, the NLRB decisions place great focus on whether an employee’s postings on social media websites fall within the definition of “concerted activity.”  “[A]n activity is concerted when an employee acts ‘with or on the authority of other employees, and not solely by and on behalf of the employee himself’”[12]  According to the Board, even if the activity occurs on a social networking platform, it is still a concerted activity if the activity is directed to coworkers in an effort to seek shared concern about the employee-employer relationship.[13]

On the other hand, the Board also placed limits on the definition of “concerted activity” to those activities where the commenting party’s online posts were made with the intention of soliciting a group action or if there is active participation from co-workers in the discussion.[14]  Therefore, an employee may be lawfully discharged in cases where the employee posts a comment that solicits no group action and does not receive any participation from co-workers.  “An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.”[15]  Employers must be careful here, however, since the Board will also look into whether there was any unlawful surveillance taken by the employer in making its decision.[16]

Broad Policies Are Interpreted to Violate Section Seven

Employers must also be careful about implementing broad policies without clear examples or definitions, because the NLRB is likely to interpret broad language to be in violation of employee rights under the NLRA.[17]  For example, in one case the employer’s policy subjected an employee to disciplinary action for “insubordination or other disrespectful conduct” and “inappropriate conversation.”[18]  This policy was found to be unlawful because it was overbroad and could be reasonably construed to preclude Section seven activity.[19]

From the numerous examples in the NLRB reports, it is crucial for employers to provide specific exceptions for Section seven activity in the social media policies.[20]  Employers may do this by using limiting language for exceptions relating to Section seven and by including examples of conduct that is within the employees’ rights.[21]  Employers must be careful to fully define any restrictions placed in their policies.[22]

Employer’s Workplace Confidentiality Rules and Discrimination Rules May Be Protected

Although the Board’s restrictions on these policies are stringent, Employers’ concerns are not altogether barred.  The reports clarify that policies which are adequately tailored may impose restrictions to protect an employer’s workplace confidentiality rules and discrimination rules.  If carefully constructed, these restrictions are lawful.  For example, one company’s policy prohibited employees from posting on social networks any material that is in violation of securities regulations and other laws.[23]  It also prohibited employees from disclosing confidential and/or propriety information, especially customer health information.[24]  The Board found such rules were lawful since they were carefully formulated so that employees could not “reasonably interpret the rule to prohibit communications about their working conditions.”[25]

In contrast, an employer’s social media policy prohibiting “discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media websites” was found to be unlawful by the Board because it prohibited discussions on work-related issues.[26]  However, the Board ruled that it was lawful for the employer to replace this policy with a new policy that only prohibited “egregious conduct, such as violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”[27]  The report explained that such conduct does not fall within the category of actions protected by Section seven, and any prohibitions imposed by the employer on such actions cannot be reasonably understood to chill Section seven activity.[28]

Conclusion

Employers should use caution when creating and implementing social media policies.  Care must be taken to develop policies that do not violate Section seven.  The majority of policies that have been found to violate Section seven are found to do so because they are overbroad in their prohibitions.  Employers should narrowly tailor their policies, provide specific Section seven exceptions, and give examples of acceptable employee conduct.

Any attempt to discipline employees for violation of these policies must also be undertaken carefully.  Careful attention to the facts of each situation and supporting advice from legal counsel should be acquired before pursuing any disciplinary action against an employee relating to a social media policy.  Employers must determine whether the activity is a “concerted activity” before deciding whether to proceed with disciplining an employee.


[1] See Catherine Dunn, Understanding the NLRB’s Latest Social Media Report, Law.com (Feb. 1, 2012), http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202540881296.

[2] See id.

[3] See Lydia Dishman, Corporate Social Media Policies: The Good, the Mediocre, and the Ugly, Fast Company, (July 9, 2010, 9:32 AM), http://www.fastcompany.com/1668368/social-media-policies-the-good-the-bad-and-the-ugly.

[4] See infra note 10.

[5] See Press Release, Office of Public Affairs, National Labor Relations Board, Acting General Counsel Releases Report on Social Media Cases (Aug. 18, 2011) [hereinafter NLRB, August Press Release], available at http://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases; see also Press Release, Office of Public Affairs, National Labor Relations Board, Acting General Counsel Issues Second Social Media Report (Jan. 25, 2012) [hereinafter NLRB, January Press Release], available at http://www.nlrb.gov/news/acting-general-counsel-issues-second-social-media-report.

[6] See NLRB Assoc. Gen. Counsel Memo OM 11-74 (Aug. 18, 2011), available at  http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743; see also NLRB Assoc. Gen. Counsel Memo OM 12-31 (Jan. 24, 2012), available at http://mynlrb.nlrb.gov/link/document.aspx/09031d45807d6567.

[7] See id.

[8] NLRB, January Press Release, supra note 5.

[9] Id.

[10] 29 U.S.C. § 157 (2012).

[11] 29 U.S.C. § 158 (2012).

[12] NLRB Assoc. Gen. Counsel Memo OM 11-74, supra note 6, at 4 (quoting Meyers Industries, 268 NLRB 493 (1984)).

[13]  For example, in a case where the employer discharged five employees who had posted comments on Facebook related to allegations of poor job performance by one of their co-workers, the Board’s General Counsel stated:

We decided that the Facebook discussion here was a textbook example of concerted activity, even though it transpired on a social network platform. The discussion was initiated by the one coworker in an appeal to her coworkers for assistance. Through Facebook, she surveyed her coworkers on the issue of job performance to prepare for an anticipated meeting with the Executive Director, planned at the suggestion of another employee. The resulting conversation among coworkers about job performance and staffing level issues was therefore concerted activity. NLRB Assoc. Gen. Counsel Memo OM 11-74, supra note 6, at 4.

[14] For example, there was a case about a truck driver who made a post on Facebook criticizing the way the business was run.  The post solicited no replies back from the driver’s co-workers and the Board found that the employee’s post was not intended to induce a group action. Therefore, the activity was not considered a “concerted activity.”  See NLRB Assoc. Gen. Counsel Memo OM 12-31, supra note 6, at 32–33.

[15] NLRB, January Press Release, supra note 5.

[16] See NLRB Assoc. Gen. Counsel Memo OM 12-31, supra note 5, at 33.

[17] For example, in one case, the Board found unlawful an employer’s  social media policy:

[T]hat provided that employees should generally avoid identifying themselves as the Employer’s employees unless discussing terms and conditions of employment in an appropriate manner. Employees have a Section 7 right to discuss their wages and other terms and conditions of employment. Here, the Employer’s rule limits employee discussion of terms and conditions of employment to discussions conducted in an “appropriate” manner, thereby implicitly prohibiting “inappropriate” discussions of terms and conditions of employment.  The policy does not define what an “appropriate” or “inappropriate” discussion of terms and conditions of employment would be, either through specific examples of what is covered or through limiting language that would exclude Section 7 activity. We concluded that employees would therefore reasonably interpret the rule to prohibit protected activity, including criticism of the Employer’s labor policies, treatment of employees, and terms and conditions of employment.  NLRB Assoc. Gen. Counsel Memo. OM 12-31, supra note 5, at 7–8.

Here, because the employer’s policy was so broad and because the employer did not provide specific exceptions to employees about their rights under the NLRA, the policy was found unlawful.   See id.

[18] NLRB Assoc. Gen. Counsel Memo OM 12-31, supra note 6, at 9.

[19] See id. at 9–11.

[20] See NLRB Assoc. Gen. Counsel Memo OM 12-31, supra note 6, at 6–8.

[21] Cf. id. at 8 (discussing ambiguities in employer’s social media policy).

[22] See id. (noting that the employer’s policy did not define “what an appropriate or inappropriate discussion of terms and conditions of employment would be.”  Id. at 8.).

[23] See NLRB Assoc. Gen. Counsel Memo OM 12-31, supra note 6, at 17.

[24] See id.

[25] Id.

[26] See id. at 16.

[27] Id. at 16–17.

[28] Id.

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