Social media policies are often created to protect employers, but where does it cross the line and take away protected rights of employees? Before you incorporate your social media policy in your employee handbook, you should ensure it is not going to violate the National Labor Relations Act (NLRA). In a recent BLR webinar, Jeffrey Schultz and John Vering outlined what the National Labor Relations Board (NLRB) has to say on the matter.

Social Media Policies and NLRB: The First Case Example

"It was actually in the latter part of 2010 the National Labor Relations Board decided that it was going to go after employers that use overly-broad social media policies to stifle employees’ rights to engage in protected concerted activities under the National Labor Relations Act." Vering advised.

"The first case that came down on this actually ended up settling. [It] involved a medical transportation company and the claim was there was an illegal firing of a worker for criticizing her boss on Facebook. The company policy in its handbook said that employees were prohibited from making disparaging or defamatory comments when discussing the company, employee supervisors, co-workers, and competitors." Vering explained.

After a customer complained, the employer asked to interview the employee about an incident. The employee asked for a union representative to be present for the interview, but that request was denied (which was an unfair labor practice and an unwise move by itself). Then the employee went home and – on her own time, on her own computer – posted disparaging comments about the supervisor on Facebook. She also compared the supervisor to a psychiatric patient. Coworkers on Facebook made sympathetic and supportive posts.

NLRB brought a complaint against the employer, saying they violated the law because the employee was engaged in protected concerted activity. "When you as an employer have a policy that tends to chill employees – whether they belong to a union or not – in their rights to discuss wages, working conditions, or unionization, then you can be liable for violating Section 7 of the National Labor Relations Act." Vering advised. In this example, unfair working conditions were being discussed, hence the claim that the employer acted unlawfully.

Social Media Policies and NLRB: Best Practices for Compliance

NLRB rules are complicated. They look to multiple factors when determining whether something is unlawful or not. These factors include:

• The place of the discussion. Was it at home or at work? Was it disruptive?
• The subject matter of the discussion.
• The nature of the employee’s outburst.
• Whether the outburst was provoked by an unfair labor practice by the employer.

There are also some best practices for staying off NLRB’s radar with regard to enforcement of your social media policies. Firstly, have your social media policy reviewed for NLRA compliance. Second, check with legal counsel before disciplining or terminating employees for violating the social media policy.

For more information on social media policy recommendations, order the webinar recording of "Social Media Policies: What Every Company Should Have in Their Handbooks,". To register for a future webinar, visit http://catalog.blr.com/audio.

Attorney Jeff Schultz is a business and commercial litigator with Armstrong Teasdale and is co-chair of the Social Media Practice Group. Much of his practice focuses on counseling individuals and organizations through complex disputes involving the misappropriation of trade secrets, computer tampering, non-disclosure agreements, non-compete agreements, commercial contracts, and social networking law.

Attorney John Vering leads the Employment and Labor Law practice group of Armstrong Teasdale. A strong litigator, he works with both local and national organizations in a wide array of industries on a wide variety of employment lawsuits and business disputes.