Social media policies vs NLRB: Where does conflict arise?

Social media policies may seem like an odd choice for investigation by the National Labor Relations Board (NLRB). However, the two have become increasingly intertwined because the NLRB has become very aggressive with social media policies in recent years. The NLRB is particularly concerned with any policies and disciplinary actions that infringe on employees’ rights to talk about the terms and conditions of employment.

For example, many social media policies contain provisions that prohibit employees from talking about employers on social media platforms. This activity could be viewed as “concerted activity” and thus be protected under the NLRA. This type of example is the basis of the NLRB involvement in employer social media policy issues.

Social media policies: Keeping within NLRB guidelines

Advice issued by the NLRB offers some helpful guidance as to what factors constitute a valid and enforceable social media policy. Employers should ensure that policy contains adequate limiting language whereby restrictions are clearly described. This allows employers to protect themselves (to a degree) while not infringing on employee NLRA rights. For example:

“Nothing in our social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Our employees have the right to engage in or refrain from such activities.”

Such a clause, if stated specifically enough, helps to ensure that employees will not interpret the policy as interfering with Section 7 activities.

Megan Winter gave further examples in a recent CER webinar: “In your social media policy you should have very specific language as to what is and is not allowed. Use some examples. For example, instead of saying that employees must protect confidentiality – which the NLRB has decided is too broad and could somewhat infringe on employees’ rights to talk about wages or benefits or other types of personnel issues – instead say that the employees should not reveal employer’s trade secrets, private and confidential business info.”

Additionally, management representatives involved in disciplinary decisions need to be educated on the identification of protected, concerted employee activities. Employers should evaluate their polices (including social media policies) for overbroad provisions that may not pass NLRB muster.

The above information is excerpted from the webinar “California: HR’s E-Monitoring Rules and Rights: Mastering E-Mail, IMs, Blogs, and Social Networking.” To register for a future webinar, visit CER webinars.

Megan Winter is an attorney in the San Diego office of Fisher & Phillips LLP. She assists employers in developing workplace policies and procedures, and she regularly advises employers regarding day-to-day employment issues and ways to avoid employment claims and litigation.