• Nonunion Employers at Risk under NLRB Rules
  • November 17, 2011
  • Law Firm: Clifton Budd DeMaria LLP - New York Office
  • It is a little-known fact that the National Labor Relations Act’s (“NLRA” or “Act”) provisions allowing employees to discuss terms of employment with each other apply to both unionized and nonunionized employers. The law generally permits employees to engage in activities for their own “mutual aid and protection,” and these activities need not involve a union.

    The National Labor Relations Board (“NLRB”) has actively enforced employees’ rights in the context of social media, such as Facebook, Twitter, and LinkedIn. Likewise, the NLRB has focused on employers’ social media policies, which may violate the NLRA if they are overbroad, that is, if they “reasonably tend to chill employees in the exercise of their rights.”

    What Constitutes “Overbroad”?
    According to one of its official memoranda, the NLRB considers the following types of policies to be “overbroad”:

    • Prohibiting employees from posting pictures of themselves in any media, including the internet, which depict the company in any way, including a company uniform, corporate logo, or company vehicle;
    • Prohibiting employees from making disparaging comments when discussing the company or the employee’s superiors, coworkers and/or competitors; and
    • Prohibiting employees from using the company name, address, or other information on their personal profiles.

    The memorandum also states that the following types of policies are “overbroad” because they do not contain limiting language to remove potential ambiguities regarding whether lawful activity is prohibited:

    • Prohibiting “offensive conduct” and “rude or discourteous behavior”;
    • Prohibiting “inappropriate discussions” about the company, management and/or coworkers;
    • Prohibiting “any communication or post that constitutes embarrassment, harassment or defamation of the [employer] or of any . . . employee, officer, board member, representative, or staff member [of the employer]”;
    • Prohibiting “statements that lack truthfulness or that might damage the reputation or goodwill of the [employer], its staff, or employees”;
    • Prohibiting employees from “talk[ing] about company business on their personal accounts . . . posting anything that they would not want their manager or supervisor to see or that would put their job in jeopardy . . . disclosing inappropriate or sensitive information about the employer . . . [or] posting any pictures or comments involving the company or its employees that could be construed as inappropriate.”

    In addition, the NLRB deemed overbroad a policy that prohibited “using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity,” as the policy “provided no definition or guidance as to what the employer considered to be private or confidential.”

    How Employers Should React
    With respect to social media policies, the best way for employers to limit or avoid potential liability under the NLRA is to include some limiting language in the policy clarifying that it does not prohibit activities that the NLRA permits. By following the guidance in the NLRB’s memorandum on social media, as outlined above, an employer should be able to reduce the risk of the NLRB finding that its policy is unlawful.