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The NLRB’s View On Acceptable Social Media Policies

The rise of social media, and the desire of employers to both control and police it as to their employees, has served to expose, to many for the first time, that the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 151, et. seq. applies not just to unionized work places but to virtually all private employers of any significant size engaged in interstate commerce.  Section 7 of the NLRA protects employees’ rights to engage in what is commonly referred to as “concerted protected activity” for their mutual aid and protection in both unionized and un-unionized work places.  Pre-social media this activity was typically not that difficult to spot because it commonly manifested itself as two or more employees talking face-to-face about working hours, pay, work conditions, etc. If an employee was acting alone, and thus, not part of concerted activity, it was typically easy to spot as well.  However, with the rise of Facebook, Twitter, YouTube and other social media outlets, what is and is not protected activity has become less clear due to the lack of clear employee interaction, and the question of what is in fact protected activity is an increasingly important question as employers struggle with what to do about employee electronic posts or communications which they do not agree with and feel merit adverse employment action.  This is especially true where these communications concern what is felt to be confidential or proprietary information.

The initial reaction of many employers with the rise of social media was to simply forbid electronic posts or communications which were negative to the employer or fellow employees and to move aggressively to discipline employees whose electronic communications and/or posts they disagreed with, but such blanket prohibitions for the most part will no longer suffice and changes must be made.

Hence, the guidance of the National Labor Relations Board (“NLRB”) must increasingly be considered.  The NLRB is charged with protecting the right of employees under the NLRA, and in the past two years its position as to what it views as permissible social media policies has steadily come into focus.  Exceedingly broad polices which address social media have increasingly been challenged and overturned, and employers now must be ever vigilant if they want to effectively regulate the social media practices of their employees. On just June 18, 2012 the NLRB launched a website, www.nlrb.gov/concerted-activity, specifically focused on the issue of protected concerted activity, and even a cursory review of that web-site illustrates the NLRB’s increasing focus on social media policies and the increasing importance of this issue.

The question then becomes, where can one look to see what social media policies would potentially pass NLRB scrutiny and be NLRA compliant?  Since August 18, 2011 Lafe Solomon, the Acting General Counsel for the NLRB, has issued three reports intended to specifically provide employers guidance on what are and are not permissible social media policies under the NLRA.  These reports, which address and comment upon recent case developments in the context of social media, show the position of the NLRB on permissible social media polices coming into clearer and clearer focus in the past year alone to the point that specific policy language has been more or less endorsed by the NLRB.  Employers should be aware of this clarifying position and potentially modify their policies to survive challenge, and employers should continue to monitor the position of the NLRB as its position on the issue of social media further sharpens over time.

While these three reports, Memorandum OM 11-74 (August 18, 2011), OM 12-31 (January 24, 2012) and OM 12-59 (May 30, 2012), only represent the opinion of NLRB’s Acting General Counsel, they are generally indicative of how the NLRB would address certain social media policies should an issue arise with them.  Addressing these three reports briefly, the trend which emerges is that the NLRB will readily find a violation of the NLRA when any social media policy would “reasonably tend to chill” employees from exercising their rights under section 7 of the NLRA.  Such a policy has been identified as one which merely prohibits, without explanation or definition, employee electronic communications about working conditions, pay or job performance.  A policy which also globally prohibits negative public comments about the employer in all contexts will also likely not survive challenge.

We have assisted many employers with drafting social media policies and we always encourage you to have your policies reviewed by legal counsel.  Check back on Friday when we discuss what should be in your social media policy, so it passes NLRA muster.

Luke A. Wingfield is an associate with McBrayer law. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mcbrayerfirm.com or at (859) 231-8780, ext. 1265.

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This article does not constitute legal advice.

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