• National Labor Relations Act May Protect Employees’ Social Media Rights
  • June 14, 2012 | Author: Michael J. Neary
  • Law Firm: Lerch, Early & Brewer, Chartered - Bethesda Office
  • Employers should carefully prepare or reevaluate their social media policies to comply with an evolving standard of government scrutiny. The Acting General Counsel (“AGC”) for the National Labor Relations Board (“NLRB” or “Board”) recently issued a second report on unfair labor practices involving social media. The report follows on the AGC’s August 2011 similar report disclosing the AGC’s views that (1) employees who engage in “concerted activity” through social media are protected by the National Labor Relations Act (“NLRA” or “the Act”); and (2) employer social media policies that unduly restrict the ability of employees to exercise their rights under the NLRA also violate the Act. The second report reiterates that the AGC believes these rights apply to unionized as well as non-unionized workplaces. Accordingly, all employers should have an awareness of the AGC’s view on these subjects and examine their social media policies and procedures to ensure that their policies meet the AGC’s standards.

    Discussing Employment on Social Media May be Protected
    The central issue identified in the two reports is that the AGC believes employees who discuss the terms and conditions of employment on social media sites could be protected under the NLRA if the comments constitute “concerted activity.” What constitutes “concerted activity” in the eyes of the AGC is still developing. The cases discussed in the two reports give some guidance as to what the AGC believes are the types of comments protected by the NLRA. In the most general terms, the AGC believes postings on social media that seek to elicit, or in fact elicit, a discussion amongst employees about the terms, conditions, or privileges of employment are protected by the NLRA. Assuming the comments posted are considered concerted activity, the employer cannot discipline the employee because of the postings. On the other hand, the AGC acknowledges that postings that disparage an employer in a manner calculated to harm the employer’s reputation and reduce its income are not considered “concerted activity.”

    If employee comments on social media are possibly protected by the Act, then employer policies cannot “chill” the ability of employees to engage in discussions on social media that would be considered “concerted activity.” Consequently, employers must craft social media policies in a manner that does not unduly prohibit employees from discussing the conditions of their workplaces with others.

    For example, unless a social media policy contains specific limitations, a broad prohibition that prevents employees from making disparaging comments about the employer on social media would violate the Act according to the AGC. The AGC has even taken the position that social media policies that require employees to obtain employer approval before identifying themselves as employees of a particular company on social media sites and to state that any opinions given are their own are too burdensome on an employee’s rights under the NLRA to discuss his or her working conditions. Hence, such a policy also would violate the NLRA.

    It remains to be seen how receptive the judiciary ultimately will be to the AGC’s views. Nevertheless, because the AGC can initiate complaints, all employers should review their social media policies and related practices carefully to ensure that they comply with the AGC’s current interpretation of the NLRA.