January 23, 2013
How does the NLRA shape employer social media policies?

Employers naturally want to craft social media policies to protect their best interests, but what does the National Labor Relations Act (NLRA) have to say on the matter? Employers may be surprised to learn how much the NLRA may affect their social media policy.

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man writing social media terms on blackboardFor example, if employees are discussing terms and/or conditions of employment, such as wages or supervisors, then discipline—even discipline in alignment with the employer’s policy—may be inappropriate.

This is because the employees may be engaging in protected activity under the NLRA.

The law gives employees the right to discuss their wages, benefits, supervisors, and other terms and conditions of employment. As such, firing an employee for doing so is unlawful. But what if the discussion occurs on Facebook or Twitter? Does this public forum change the NLRB’s stance or interpretation of the NLRA?

"The National Labor Relations Board has aggressively moved into the realm of social media." Peter Gillespie explained in a recent BLR webinar. They dissect social media policies and evaluate employee claims related to social media. As such, employers need to be very wary of going too far when prohibiting social media use. The NLRB General Counsel says that social media is the 21st century equivalent of the water cooler and such speech should be protected.

Social media policies and the NLRA

Developing a social media policy that does not risk violating the NLRA is more difficult that it might seem. Here are some examples of seemingly benign social media policy statements that have been deemed unlawful under the NLRA:

Policy provision:

Employees are prohibited from disclosing or communicating information of a confidential or sensitive nature, or non-public information concerning the company, on or through company property to anyone outside the company without prior approval of senior management or the law department.

Deemed unlawful because:

A rule precluding employees from discussing terms and conditions of employment, or sharing information about themselves or their fellow employees with outside parties violates Section 8(a)(1). It is irrelevant that the policy only prohibited communications/disclosures made on/through company property.

Policy provision:

Employees are prohibited from using the company’s name or service marks outside the course of business without prior approval of the law department.

Deemed unlawful because:

Employees have Section 7 rights to use their employer’s name or logo in conjunction with protected concerted activity. This policy could be construed to restrict employees’ Section 7 rights to use the employer’s name and logo while engaging in protected concerted activity.

Policy provision:

Social networking communications must be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comment regarding the employer, its subsidiaries, their shareholders, officers, employees, customers, suppliers, contractors, and patients.

Deemed unlawful because:

Terms like "professional" and "appropriate" could be construed by employees to prohibit them from communicating on social networking sites with other employees or with third parties about protected concerns.

For more information on crafting a social media policy that does not violate the NLRA, order the webinar recording of "HR’s E-Monitoring Rules and Rights: Mastering E-Mail, IMs, Blogs, and Social Networking." To register for a future webinar, visit http://catalog.blr.com/audio.

Attorney Peter Gillespie is of counsel in the Chicago office of Fisher & Phillips LLP. He represents and counsels management on a wide array of employment law-related issues, including workplace discrimination and harassment, covenants not to compete, wage and hour laws, retaliation, hiring, promotion and dismissal decision-making, workplace privacy, genetics-based discrimination, data retention, compensation, fraud, defamation, occupational health and safety issues, and statutory compliance.

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