• Social Media Policies and the National Labor Relations Board Create Uncertainty for Employers
  • June 24, 2013
  • Law Firm: Hartman Underhill Brubaker LLP - Lancaster Office
  • Despite the National Labor Relations Board (NLRB) issuance of both a guidance memorandum and multiple rulings within the last few months, employers may still question whether their Social Media Policy complies with the law. 

    The NLRB’s most recent guidance memorandum analyzed provisions of multiple social media policies with the aim of providing employers guidance on the types of provisions that are unlawful under the National Labor Relations Act (NLRA).  Some of the guidance issued may seem counterintuitive.  For example, a policy directing employees not to release confidential customer, employee or company information while using social networking tools was deemed to inhibit protected, concerted employee activity because it did not specifically include an exception allowing employees to discuss terms and conditions of employment consistent with Section 7 of the NLRA. 

    Additionally, the NLRB advised that a provision of an employer’s social media policy declaring offensive and otherwise inappropriate remarks to be “as out of line online as they are offline” was overly broad, and therefore unlawful, because it could prohibit the employee’s ability to criticize the employer’s labor policies or treatment of employees.

    In September 2012, the NLRB issued its first decision finding that an employer’s social media policy was overly broad and therefore a violation of the NLRA.  There, Costco Wholesale Corporation’s policy prohibiting employees from electronically posting statements that “damage the company, defame any individual or damage any person’s reputation” was deemed a violation of the law because it could prohibit employees from discussing terms and conditions of employment, thereby chilling the exercise of their rights under the NLRA.  The NLRB also struck down a provision of Costco’s policy prohibiting employees from using social media to discuss confidential or private information relating to an employee’s health, FMLA leave, ADA accommodations or finances, reasoning that such restrictions were inconsistent with Section 7.

    Less than a month later, an Administrative Law Judge (the ALJ) issued a ruling addressing an employer’s policy relating to an employee’s use of social media during “company time.”  See Echostar Technologies, LLC, Case 27-CA-066726.  The ALJ reasoned the policy was overbroad because it could be applied, impermissibly, to restrict employee use of social media during break times. 

    More recently, in In re Hispanics United of Buffalo and Ortiz, Case No. 03-CA-027872, the NLRB ruled that an employer’s termination of five employees for posting on Facebook their thoughts regarding a co-worker’s performance was a violation of the NLRA.

    While recent events have called into question the validity of certain appointments to the Board, and therefore its authority, there can be no dispute that social media has been (and will remain) an area of primary focus.  Employers should review existing policies and suggested enforcement efforts with counsel before acting pursuant to a policy.  Even provisions that seem reasonable on their face may be interpreted by the NLRB as a violation of Section 7 of the NLRA.