• Poorly written social media policies can lead to NLRA violations
  • May 12, 2015 | Author: Joseph L. Gordon
  • Law Firm: Burns White LLC - West Conshohocken Office
  • For better or worse, social media gives every person a powerful way to express his or her thoughts.  Employers have been finding out recently how these expressions can sometimes make things worse for their companies, when employees use social media forums, such as Facebook or Twitter, to criticize their co-workers, bosses or the company itself.  As a result, almost all employers now have policies that govern employees’ use of social media when it involves the company.  But these policies have their own hazards.  A poorly written policy can end up violating Federal labor law for wrongly restricting what employees can say about their working conditions.

    When considering their social media policies, companies must be aware that the National Labor Relations Act (NLRA), a federal law governing employer-employee relations, guarantees employees’ rights to discuss the terms and conditions of their employment.  “Terms and conditions” are broad areas.  They include topics like wages and benefits, workplace safety, supervisory treatment and interest in forming a union.

    There is no better illustration of the perils employers face in drafting effective social media policies than decisions by the National Labor Relations Board, the federal agency that enforces the NLRA.  Here are a few examples of actual company social media policies that were recently found to be unlawful for imposing restrictions on employees’ social media activity, when those restrictions could be interpreted as restricting employees’ right to discuss the terms and conditions of their employment.

    • “It is important that employees practice caution and discretion when posting content on social media that could affect the employer’s business operation or reputation.” (Violates employee’s right to criticize the current conditions of employment, which may harm the reputation of the employer, in an effort to try to collectively bargain for better conditions.)
    • “Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online¿” (Violates an employee’s right to criticize a supervisor in an effort to try to improve employment conditions.)
    • “Show proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.” (Violates an employee’s right to talk generally about organizing or the labor movement, topics which are inherently political.)

    You can download the most recent National Labor Relations Board advisory memo discussing why each of these employer rules is unlawful here: NLRB Gen. Couns. Mem. GC 15-04.

    Two other factors are important to remember in this context.  The first is that the NLRA’s rules governing employee expression apply whether employees are in a union or not.  As you can tell from the examples above, expressions by non-union employees about whether they want to form a union are protected.  The second is that employers are being monitored for compliance with the NLRA by both their employees and National Labor Relations Board regulators, both of whom have shown an increased willingness to file claims involving unlawful social media practices.

    Even though the NLRA limits how an employer can design its social media policy, certain types of restrictions should always be part of any such policy.  The policy should always include provisions about equal employment opportunities and prohibitions against using social media for harassment of co-workers.  The policy should protect a company’s intellectual property, and prohibit employees from making negative untrue comments about the company’s product or service.  Further, a policy can restrict an employee from publicly complaining about issues personal to him or her, as opposed to working conditions generally.

    Given current conditions, it would benefit companies to review their social media rules to make sure that they are not restricting employees’ rights under the NLRA.  For additional information on the NLRA, social media policies or related issues, contact me or any of my colleagues of the Employment Group at Burns White.