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What does Social Media have to do with Federal Labor Law?

August 15, 2012

Section 7 of the National Labor Relations Act (NLRA) protects both union and non-union employees’ right to engage in “protected concerted activity.”  “Protected concerted activity” is a fancy, legalistic way of expressing the right of employees to come together and act in order to improve their working conditions (e.g., wages, benefits, working hours, disciplinary action, etc.). An employee’s individual act may be “concerted” if it is intended to induce group action or is in furtherance of a group’s goal. However, not all concerted activity is protected. For example, mere “gripes” or disparaging comments intended to harm an employer’s reputation generally do not fall within Section 7’s protections.

Section 8(a)(1) of the NLRA prohibits an employer from interfering with, or restraining or coercing employees from exercising their Section 7 rights. An employer violates Section 8(a)(1) by implementing a policy that would “reasonably tend to chill employees in the exercise of their Section 7 rights.” Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). In determining whether a workplace policy unlawfully “chills” employees in the exercise of their Section 7 rights, the NLRB looks to a two-part rule. Lutheran Heritage Village – Livonia, 343 NLRB, 646, 647 (2004). First, a policy is unlawful if it explicitly restricts Section 7 activity. For example, a policy that prohibits employees from discussing their wages explicitly restricts Section 7 activity and is unlawful. If the policy does not explicitly restrict Section 7 activity, the policy may still violate the NLRA if: (1) employees could “reasonably construe” the language of the policy to prohibit Section 7 activity; or (2) the rule was implemented in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

If an employer’s social media policy is found to be unlawful, any discipline the employer imposes on an employee pursuant to that policy violates the NLRA. However, it is also worth noting that an employer may violate Section 8(a)(1) by merely maintaining such a policy, regardless of whether it actually enforces the policy.

Tips for Drafting Social Media Policies

As noted above, the NLRB issued three reports in the last year summarizing recent social media cases. Based on these cases, employers should consider the following “tips” when drafting and/or updating their own social media policies:

Avoid General or Overly Broad Language. The NLRB has struck down policies restricting employees from making “defamatory, disparaging, disrespectful, inappropriate, negative, demeaning or false” comments about an employer or supervisor. However, policies prohibiting “malicious, obscene, threatening or intimidating” comments, or comments that would otherwise violate the employer’s workplace policies prohibiting discrimination and harassment, have been upheld as lawful. The difference? The language deemed unlawful is so broad that employees could reasonably infer they are restricted from discussing work conditions with fellow employees or third parties. In contrast, the language deemed lawful clearly prohibits conduct not protected by Section 7.

Define Terms and Provide Examples. Make sure to define terms and, where possible, provide specific examples of prohibited conduct. For example, policies prohibiting employees from communicating or disclosing “confidential information,” without defining what information that includes, are generally unlawful. However, policies that ban dissemination of proprietary information such as trade secrets, marketing or promotional strategies, attorney-client privileged information, etc., are generally lawful because the examples show that the policies do not apply to Section 7 activity.

Make Suggestions Without Requiring or Prohibiting Conduct. Requiring employees to attempt to resolve workplace conflicts within the office before voicing their concerns on social media platforms is unlawful. Employers may, however, suggest employees “keep in mind” that they are more likely to resolve work-related complaints within the office than by posting them online.

Encourage Employees to Comply with the Law. Employers can encourage employees to comply with intellectual property laws, including respecting the company’s trademarks and logos. However, employers cannot prohibit or require permission before using company uniforms, logos, or any other photos depicting the company, as this would prevent employees from wearing company t-shirts or carrying a sign with the company’s logo while protesting terms and conditions of employment.

Be Careful When Requiring and Prohibiting Employees from Associating Themselves with the Company. The NLRB has struck down policies restricting employees from identifying themselves as an employee, requiring employees to request permission prior to identifying themselves as an employee, and requiring employees disclaim in every post that their opinions are not those of the employer. However, employers may lawfully restrict employees from representing themselves as the employer’s spokesperson. Similarly, employers may require employees specify that their views do not represent those of the employer when the employer is the subject of the post.

Include a “Savings Clause.” Employers should include language in their social media policies stating “nothing in this policy should be construed so as to interfere with an employee’s rights under the NLRA.” While including such language will not cure an otherwise unlawful social media policy, it nevertheless remains a smart practice.

For an example of a “lawful” social media policy, employers may consult the sample policy included at the end of the NLRB’s third social media report.

Employers familiar with the NLRB’s stance on social media policies are often left asking “what does all this have to do with unions?” The NLRB’s aggressive stance on employer social media policies is designed to make it easier for employees to join together and unionize, plain and simple. And as the number of private sector unions continues to decline in the United States, the NLRB’s definition of what is considered “protected concerted activity” under Section 7 is only likely to continue expanding. Employers should consider consulting experienced labor and employment counsel to assist in drafting new social media policies and/or updating existing ones.

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