With the National Labor Relations Board (NLRB) becoming more active in striking down social media policies, employers may not be Laughing Out Loud if faced with an unfair labor practice charge. Taking Care Of Business now involves some straightforward steps to achieve the proper balance between protection of confidential and proprietary information while not impacting the legal right to engage in “concerted activities” under federal law, the National Labor Relations Act (NLRA).
Section 7 of the NLRA grants employees (with or without a union) the right to engage in “concerted activities for the purpose of … mutual aid or protection.” The NLRA prohibits employers from interfering, restraining or coercing employees who exercise their rights under Section 7, or from discriminating against employees because of their protected activity. In other words, the NLRA protects the rights of employees to discuss wages and other working conditions.
Since many of those discussions can occur on Facebook, Twitter or YouTube, it is important to sync policies with today’s real world of e-communications.
Just So You Know, three times in the last year, the NLRB issued an Operations Management Memoranda with direction on drafting and applying social media policies. The NLRB said that social media policies that could “reasonably be construed to chill Section 7 rights,” such as discouraging communication regarding working conditions among employees or requiring permission to engage in protected, concerted activity, will be deemed unlawful.
A policy need not explicitly prohibit protected speech to be unlawful. A policy that has a vaguely defined impact or which contains no limiting language can also be unlawful.
As with most employment law issues, there is a spectrum of conduct which ranges from lawful to the unlawful.
For example, in one recent NLRB ruling, a majority of the board affirmed that an employee’s dismissal was lawful. In that case, the employer, a BMW dealership, fired a salesman because of his posts on Facebook about an accident at a neighboring Land Rover dealership also owned by the employer. These posts had nothing to do with the employee’s wages, hours, or terms and conditions of employment, and so were not protected.
By The Way, the NLRB reached the opposite conclusion in a case where four co-workers were engaged in protected activity when they objected to a fellow employee’s Facebook posts threatening to report them to the boss. According to the Board, these Facebook posts had the clear “mutual aid” objective of preparing the co-workers for a group defense to such complaints.
To avoid an Oh My Gosh moment, engage in a review of your company or organization’s current social media policy and ask these questions: Does the policy provide a definition of confidential and proprietary information? Are employees required to get prior employer approval before posting? Such a provision could be deemed as inhibiting protected activity. Does the policy narrowly define “offensive, demeaning, abusive or inappropriate remarks?” An overbroad approach to prohibited remarks could cover a broad spectrum of communications that would include protected criticisms of an employer’s labor policies or treatment of employees.
There will be More To Follow as the NLRB and various courts wrestle with the balance between employers’ legitimate concerns regarding social media and activities that have been afforded protection under Section 7 of the NLRA.