In the past few years, the National Labor Relations Board has taken an increased interest in whether workplace policies prohibiting employees from discussing the terms and conditions of their employment on social media, such as Facebook and Twitter, violate the National Labor Relations Act by interfering with workers rights to engage in concerted activity.
Federal law prohibits an employer from interfering with employees who come together to discuss work-related issues for the purpose of collective bargaining or other mutual aid or protection, and the NLRB has (correctly) noted that social media has become one of the primary avenues through which employees engage in such activity. A spate of recent decisions makes clear that the NLRB has intensified (and will likely continue to intensify) its scrutiny of employer social media policies and this scrutiny extends no less to non-unionized employers.
Recent decisions provide examples of the specific policy language that the NLRB has found unlawful, illustrating the various hazards employers face when drafting their social media policies. Just before Labor Day, the board, in
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In addition, the board held that the companys Internet/Blogging policy discouraging online communications involving confidential or proprietary information about the Company, or inappropriate discussions about the company, management, and/or co-workers violated the NLRA. The fact that the policy included language stating that it had no force or effect to the extent it was precluded by state or federal law made no difference in the boards view. While acknowledging that the policy did not explicitly restrict protected activity, the board nevertheless determined that it violated the NLRA because employees could reasonably interpret it as proscribing any discussions about their terms and conditions of employment [that the employer] deemed inappropriate.
In
In another case,
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Similarly, another ALJ recently determined that a company that provided restaurant management services violated the NLRA when it terminated a server for posting disparaging comments about coworkers and managers on social media in violation of an insubordination rule contained in the companys handbook. In
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Despite these cases, at least one ALJ recently determined that an employer could enforce its social media policy without violating the NLRA. In
While the boards decision in Landrys offers some useful guidance regarding efforts an employer can take to survive challenges to its social media policies, the NLRBs recent rulings suggest it will continue to aggressively pursue policies it perceives as too restrictive. Employers should be aware that boilerplate disclaimers will not prevent violations, as demonstrated by the boards decision in Triple Play Sports Bar and Grille that the employer did not eliminate the chilling effect of its internet/blogging policy on NLRA rights by stating that the policy would have no force or effect if it conflicted with state or federal law.
One obvious step employers may wish to take is including a clause in their social media policy describing activities that the NLRA protects and affirming that they do not intend for their policy to interfere in any way with those rights. As a corollary, employers should consider identifying precisely the kinds of unprotected social media activities that will subject employees to discipline. These may include:
- Disclosure of proprietary, financial, marketing, strategic or other confidential business information belonging to the employer that is clearly defined and does not relate to terms and conditions of employment.
- Threats of violence or remarks that are obscene, malicious or bullying.
- Comments that are racist, sexist or otherwise discriminatory and create a hostile work environment.
- Rumors or other disparaging statements about the employer that the employee knows to be false.
Regardless of the unique goals of an individual employers social media policy, the key to an effective, enforceable policy is identifying with clarity the specific activities that will not be tolerated and carving out with equal precision those that the NLRB has made clear cannot be infringed. As evidenced by the Landrys ruling, limiting language is crucial, and as with many other types of workplace policies, drafting restrictions narrowly can often make the difference in whether subsequent challenges succeed or fail.
George Patterson is a staff attorney at Mintz Levin, where he focuses his practice on all aspects of employment law, including discrimination, harassment, wage and hour issues, and other employment-related litigation and counseling.