by Celeste Blackburn, BLR Editor

On May 30, the National Labor Relations Board (NLRB) issued its third report on employer social media policies. Of the seven cases reviewed, six focus on employer social media policies that offer examples of what not to do when trying to regulate employee activity on Facebook, Twitter, and other social media sites. In the seventh case, the NLRB found the employer’s social media policy to be lawful under the National Labor Relations Act (NLRA), which protects virtually all employers’ nonsupervisory employees, not just those represented by a union.

Social Media and Section 7

Section 7 of the NLRA grants employees the right “to self-organization, to form, join, or assist labor organizations …. and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Under the Act, employers may not “interfere with, restrain, or coerce employees in the exercise of” those rights.

In Indiana Employment Law Letter, Employers Counsel Network attorney Brian R. Garrison of Faegre Baker Daniels in Indianapolis explains that, “Generally, two or more employees acting together to address a collective employee concern is considered protected concerted activity. However, a single employee acting on behalf of others, initiating group action, or discussing the matter with coworkers can also be engaged in protected concerted activity.” So a single employee sending out a tweet on Twitter or a group of employees posting on Facebook could be considered to be addressing a collective employee concern, making those social media interactions protected concerted activity.

In writing the most recent report on employer social media polices, NLRB Acting General Counsel Lafe Solomon often finds that the employer polices that try to restrict if or how employees talk about work on Facebook, Twitter, or other social media sites  are “overly broad” and “ambiguous” and could be construed as trying to prevent protected concerted activity. Therefore, they violate employees’ Section 7 rights under the NLRA.

Learn from Other Employers’ Mistakes

Here are some of the mistakes employers made that caused their social media policies to be unlawful according to the NLRB’s report:

• Instructing employees not to “release confidential guest, team member or company information” could be “interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment,” like wages or working conditions.
• Admonishing employees to be sure that their posts are “completely accurate and not misleading and that they do not reveal non-public information on any public site” is an overly broad restriction “because it would reasonably be interpreted to apply to discussions about, or criticism of, the Employer’s labor policies and its treatment of employees.”
• Cautioning employees that “[w]hen in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea [,]” is unlawful because “any rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities violates the Act.”
• Prohibiting employee “from using the Employer’s logos and trademarks” when discussing posting photos and videos is unlawful because “employees would reasonably interpret these provisions as proscribing the use of photos and videos of employees engaging in Section 7 activities, including photos of picket signs containing the Employer’s logo.”
• Warning employees to “[t]hink carefully about ‘friending’ co-workers” is unlawful because “it would discourage communications among co-workers, and thus it necessarily interferes with Section 7 activity.”
• Asking employees to “[r]eport any unusual or inappropriate internal social media activity” is unlawful because it could be construed as “encouraging employees to report to management the union activities of other employees.”

NLRB Says Examples Essential to Employer Social Media Policy

The employer social media policy that the NLRB found “lawful,” and saw fit to include in its entirety as part of the report, was repeatedly praised for the examples it offered of prohibited behavior for specific circumstances.

Be Respectful. Lafe writes of the “Be Respectful” section of the policy: “In certain contexts, the rule’s exhortation to be respectful and ‘fair and courteous’ in the posting of comments, complaints, photographs, or videos, could be overly broad. The rule, however, provides sufficient examples of plainly egregious conduct so that employees would not reasonably construe the rule to prohibit Section 7 conduct.”

Those “sufficient” examples included:

• counseling employees to avoid posts that "could be viewed as malicious, obscene, threatening or intimidating" and;
• explaining that prohibited “harassment or bullying” would include “offensive posts meant to intentionally harm someone’s reputation” or “posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.”

Confidentiality. The same employer also got the confidentiality part of its social media policy right. Lafe wrote, “the Employer’s rule provides sufficient examples of prohibited disclosures (i.e., information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures, or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions.”

Inappropriate Postings. The employer social media policy prohibited posts that “include discriminatory remarks, harassment and threats of violence or similar inappropriate or unlawful conduct.” The NLRB found that provision of the policy lawful because “it prohibits plainly egregious conduct, such as discrimination and threats of violence, and there is no evidence that the Employer has used the rule to discipline Section 7 activity.”

What’s an Employer to Do?

While employers want to be mindful of NLRB guidance and do their best to stay on the agency’s good side, social media expert Molly DiBianca points out that perfecting an employer social media policy isn't something to lose too much sleep over. An Employers Counsel Network attorney with Young Conway Stargatt & Taylor, LLP, in Wilmington, Delaware, DiBianca writes on Delaware Employment Law Blog that none of the NLRB reports on employer social media reports are binding or constitute precedent. So “the risk of having a policy that is later found to be in violation of the NLRA is that you would have to change your policy and put up a posting about the change.”

Thus, there will be no huge fines or government sanctions imposed if the NLRB finds an employer’s social media policy to be ambiguous, overly broad, or just plain unlawful. Still, employers will want to strive to have a social media policy that doesn't catch the agency’s attention (or make it a headline on the nightly news) in the first place. To that end, the report suggests that employer social media polices should contain “limiting language or context to clarify that the rules do not restrict Section 7 rights.”

Access to the full NLRB report on employer social media policies can be found at http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies.

Related resources:

• Social Media Policy (Standard)
  
• Video: How NLRB's Recent Pro-Union Activity Impacts Employers
  
• Social Media Passwords: A Giant Brouhaha

Celeste Blackburn is the managing editor of HR Insight, Diversity Insight, and Technology for HR. She has written about human resources for a variety of publications, including Basic Training for Supervisorsand Frontline Supervisor, and has written and edited a series of white papers covering employment trends and developments. Before coming to BLR®, she was the business editor for The Daily Herald in Columbia, Tennessee. Celeste earned her bachelor’s degree from David Lipscomb University and a master’s from Middle Tennessee State University, where she also taught writing.