This is Part II of a four-part series on Social Media Law. For Part I, click here.
Social Media Law Part II: The National Labor Relations Board and Company Social Media Policies
The National Labor Relations Act grants a number of rights to most employees in the US, including those employees who are not part of a union. These include, among others, “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Courts have interpreted this language to include the right to communicate with other employees regarding work related matters. Social media is not excluded from the reach of the NLRA or the National Labor Relations Board (NLRB). How has the NLRB ruled on corporate social media policies?
The NLRB’s Review of Social Media Policies
Recently, the Acting General Counsel of NLRB has found many social media policies enacted by employers to be unlawful. A report by the Acting General Counsel described seven recent cases in which they reviewed social media policies. In six of those cases, the conclusion was that the policy was unlawful. Clearly, this is a situation where even those employers who are making the effort to have clear, written policies are falling short of their legal obligations.
Generally speaking, social media policies limiting or banning employees from discussing the employer/company are unlawful when they “reasonably tend to chill” non-union employees in the exercise of their rights to engage in concerted, protected activity. Concerted activity occurs when employees act jointly for the purpose of union or organization, collective bargaining, or other mutual aid or protection with regards to their working conditions (discussing wages, hours, and other conditions).
As a rule, if the social media policy can be reasonably construed to prevent employees from making statements to the effect that the employer is not treating employees fairly or paying them sufficiently, the policy is illegal. Policies that are overly broad or contain vague language are considered to “chill” protected speech.
Even a limiting language or “saving” clause has not always been enough to save the policy. For example, one policy stated that the employees were permitted to discuss wages, benefits, and terms and conditions of employment in an appropriate manner. Despite the presence of this “savings” clause, the word “appropriate” was held to be too broad and unclear on the grounds that the employee could reasonably interpret the policy was banning certain permitted speech.
One policy that was found unlawful prohibited employees from using social media to post information “that could be deemed material non-public information or any information that is considered confidential or proprietary.” This policy was rejected on the grounds that the terms “material non-public information” and “confidential or proprietary” could be interpreted to include information concerning employees’ working conditions.
Some other rules that were found to be illegal were:
- Prohibiting employees from posting using the employer’s logos and trademarks, because this could be interpreted as preventing the posting of photos of picket signs.
- Prohibiting offensive, demeaning, abusive, or inappropriate remarks, because this could be broadly interpreted to include criticism of employment conditions.
The rational conclusion here is that any policy that could be interpreted in any way as possibly curbing protected employee speech will be deemed unlawful by the NLRB.
Are Any Company Social Media Policies Lawful According to the NLRB?
The Acting General Counsel did find one social media policy to be lawful within the terms of the NLRA, stating that the policy provided “sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity.” This policy included rules that:
- Encouraged employees to be suspicious of online scams that might trick them into disclosing confidential information. Allowed on the grounds that this rule does not prevent any particular communications.
- Prohibited postings that were inappropriate or unlawful, including discriminatory remarks, harassment, and threats of violence. Allowed because the rule prohibits egregious conduct that would already be prohibited. The NLRB also noted that there was no evidence that this rule had been abused by the employer to prohibit protected speech (which adds a whole new twist to this exercise).
- Required respect, fairness, and courtesy in social media posts. Allowed, in part, because of the prohibited postings rule outlined above – apparently, in the eyes of the NLRB, these rules when reviewed together were not overbroad or ambiguous.
- Required employees to maintain confidentiality of trade secrets. This was allowed because employees have no right to disclose trade secrets. In this case, the employer gave concrete examples and clearly indicated that the rule did not include NLRA-protected communications about working conditions.
- Prohibited employees from falsely representing an opinion or statement as being the policy or view of the employer. Allowed on the grounds that this did not affect protected speech, but simply prevented employees from falsely characterizing the employer’s positions.
- Required employees to post a disclaimer on work-related blog posts to the effect that the views and opinions are those of the employee and do not necessarily reflect the view of the employer. This was seen as a legitimated need on the part of the employer and not a burden on protected employee communication rights.
It’s almost impossible at this point to determine exactly what would and wouldn’t be considered a legal social media policy by the NLRB. Furthermore, there is no guarantee that any NLRB ruling would be upheld by a court. Clearly, this is an evolving area of the law. Nonetheless, this information does at least provide some guidelines for employers and employees as far as what is and is not permissible in employer social media policies.
Next week: Part III – How courts are getting involved in social media law, and some tips for employers and employees.