Social media policies have come under scrutiny from the National Labor Relations Board (NLRB), primarily in relation to an employee’s rights to conduct concerted activity. This right is protected by the National Labor Relations Act (NLRA) Section 7. The problem is, the NLRB’s recent interpretations have been so broad that you may not even have the faintest idea that you could be in violation. Let’s take a look at the relevant guidance from the NLRB.
NLRA Sections 7 and 8: The Basics
NLRA Section 7 states: “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.”
Section 8 continues by stating that “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” It also states that an employer violates Section 8(a)(1) through the maintenance of a work rule if that rule “would reasonably tend to chill employees in the exercise of their Section 7 rights.”
NLRA, Concerted Activity, and Social Media Policies
What constitutes concerted activity?
“An 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 or herself.” Louis Klein explained in a recent BLR webinar. “Concerted activity encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action.”
“Some of the most famous NLRB rulings over the last year have to deal with Facebook issues and employees talking on Facebook or posting on Facebook their problems about the terms and conditions of their employment. These were seen to be concerted activity . . . their discussions were seeking to initiate or to induce or to prepare for group action.” Klein explained.
On January 24, 2012, the NLRB’s Acting General Counsel’s Report Concerning Social Media Cases covered two main points:
- Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as discussion of wages or working conditions among employees (NLRA Section 7)
- 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.
Then, in the May 30, 2012, NLRB Acting General Counsel’s Report Concerning Social Media Cases, they provided further clarifications:
- It is permissible for employers to merely advise employees to be cautious about unwittingly divulging confidential information through the use of social media.
- Overbroad and ambiguous social media policy provisions are unlawful.
- Provisions that prohibit “friending” of coworkers are unlawfully overbroad because they would tend to discourage employee communications.
- Including a provision about reporting unusual or suspicious internal social media use violates the NLRA by encouraging employees to report to management union activities of other employees.
NLRA and Social Media Policies: How to Ensure Your Policy is Not Overbroad
Having an overbroad social media policy is one of the biggest pitfalls employers face when it comes to staying in NLRA compliance. Here are some examples of overbroad social media policies that could be construed as restricting employees’ Section 7 NLRA rights of concerted activity or unionization:
- Prohibiting employees from making disparaging comments about the company through any media. If the policy contains any prohibitions in this manner, be sure to include limiting language that would clarify to employees that the policy does not restrict Section 7 rights.
- Requiring employees to avoid identifying themselves as company employees (unless for legitimate business reasons or when discussing terms and conditions of employment in an “appropriate” manner).
- Prohibiting employees from using social media to engage in unprofessional communications that could negatively impact the employer’s reputation interfere with the employer’s mission. (This includes prohibiting unprofessional/inappropriate communication regarding members of the employer’s community).
- Prohibiting employees from disclosing or communicating information that is confidential, sensitive, or otherwise non-public information on or through company property to anyone outside the company without prior written approval.
- Prohibiting the use of the company’s name or service marks outside the course of business without prior approval.
- Prohibiting the publishing of any representation about the company without prior approval.
However, even with these restrictions, employers may still be within their rights when disciplining employees for actions that are disparaging to the company and not related to any concerted or other protected activity.
“If you have an employee who’s on Facebook who is just voicing individual gripes and has really no relationship to the employee’s terms and conditions of their employment, that’s not going to be considered concerted activity.” Klein explained. “The employer is not going to be liable for discipline imposed pursuant to an overbroad policy if it can establish that the employee’s conduct actually interfered with the employee’s own work, or that of other employees, or otherwise actually interfered with the employer’s operations, and that interference was the reason for the discipline.”
This information is excerpted from the webinar titled “NLRB Expands Its Reach: Why Even Non-Union Employers Need To Watch Out.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Louis C. Klein is of counsel in the Los Angeles office of Foley & Mansfield. He focuses his practice in employment matters.