You’ve Been Unfriended: Company Social Media Policies that Attack Employees’ Online Chatter May be Illegal

Imagine this: you have recently learned that a group of your employees have been posting negative comments about your business on Facebook.  In addition to their tirades regarding customers who are “cheap tippers” and supervisors who are “clueless,” they have posted photos of themselves wearing their uniforms and holding a placard that says, “Wage Slaves for [Your] Company!”  If your first thought is to fire them all, or to issue a policy prohibiting any discussion about the company on social media, hold that thought!

Your employees’ social media activities might be permissible under the National Labor Relations Act (the “NLRA”), and policies or approaches taken by you, the employer, may be deemed unlawful or overbroad by the National Labor Relations Board (the “NLRB”), the agency that monitors compliance with the NLRA.  Many employers have the misunderstanding that the NLRB only deals with unions, but all employees have a right to engage in “protected concerted activity” under the NLRA, section 7, including those who do not belong to a union.  See 29 U.S.C. § 157.  According to the NLRB, that protected concerted activity includes, but is not limited to, “two or more employees acting together to improve wages or working conditions,” even if employees choose to do so through social media.  As a result, the NLRB has taken an active role in examining employers’ approaches to drafting social media policies, as well as any disciplinary actions that may result from those policies.

In a series of reports and memoranda, the NLRB has clarified its interpretations of what are and are not lawful provisions of an employer’s social media policies, and it issued its most recent report in May 2012.  In that report, the NLRB focuses on employer practices that might violate Section 8(a)(1) of the NLRA, which states, “It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7].” See 29 U.S.C. § 158(a)(1).  The NLRB examines whether an employer’s social media policy strictly forbids activities protected under section 7, or, if it does not, whether the policy is so broad or ambiguous that an employee would read the language to suggest that such activity is prohibited. The agency also looks to whether the rule or policy was issued in response to union activity, or applied in such a way as to have the effect of restricting protected concerted activity.

The agency’s memorandum provides several examples of how employers may draft policies too broadly, and thus, unlawfully, and it also provides an example of what it considers to be a lawful approach.  Attempting to understand what is and is not permissible to include in a social media policy can be as challenging as learning complicated dance moves, so below are some helpful tips to understanding the basic steps.

  • Take care not to limit employees’ discussions about how they are impacted by the workplace:  If your policy encourages employees to resolve their workplace concerns internally rather than online, or prohibits them from expressing their personal opinions to the public, it may be unlawful.  No matter the format, employees have a right to express their opinions about their working conditions when they are doing so on their own time.
  • Provide specific examples of prohibited activity to help narrow the focus: If your policy discourages employees from sharing “confidential,” “legal,” “company” or “coworker” information, for example, it may be overbroad and illegal.  An employee could be discussing, among other things, a discrimination claim they have filed against the company, how much a coworker is making compared to the employee, or how an employer is distributing a gratuity amongst employees.  All of these items might be seen by the company as confidential, legal or internal company issues, but they also impact employees.  As a result, they are likely covered as protected activity.  Clarifying that “confidential” means things like “trade secrets,” or  “confidential attorney-client privileged information,” helps to make clear that your restrictions only refer to areas where the employee has no legal rights or interests.
  • Separate the employee’s remarks from your own: You are allowed to ask your employees to distinguish their opinions or representations from those of the company.  An employee cannot both claim to be representing the views of the employer, yet seek NLRB protection against the employer for comments he or she claimed to be making on behalf of the company.
  • Let other workplace policies help to make the point:  Your social media policy may remind employees that online comments might run afoul of other policies, primarily those that prohibit harassment, violence, or other forms of discrimination and inappropriate behavior where the law is already on your side.  Whether online or offline,  an employee could not expect to rely on protection under the NLRA for such activities.
  • Simply stating that the social media policy does not violate the NLRA does not make it true:  A blanket statement of this sort won’t “cure” any language in your policy that states the contrary.  If your policy’s language curtails employees’ behaviors in violation of the NLRA, your policy will likely violate the NLRA!

The bottom line is, employees have a right to discuss workplace conditions.  “The Boss” has always been fodder for employees’ workplace dissatisfaction and concerns, and logically so – she or he typically establishes the rules and direction of the company, from designing menus to designing wages and benefits.  Before the popularity of the Internet and digital media, employers had to accept the fact that employees might express their concerns and air their workplace grievances with fellow coworkers over a drink at a coffee shop or local bar, and anyone present might overhear the conversation.  Even then, it was a violation of the NLRA to prohibit employees from, say, comparing pay or discussing unionization.  Now, the format and venues may have changed, and the world at large may witness that conversation, but the standard remains the same.  If your policies are too broad and prohibit employees from discussing working conditions, they may be unlawful under the NLRA.

As always, you are encouraged to consult legal counsel to discuss, review, or draft employment policies and procedures, including those defining the use of technology and social media.