Remember Careful Colleen, the HR Director for Exceptional Enterprises from last week’s post? (Click here if you didn’t get to meet her.) Aside from confidentiality policies, Colleen has made sure that Exceptional’s social media policy forbids employees from posting negative statements about the company or co-workers. Colleen has heard though, that somehow such a prohibition could get Exceptional in trouble with the NLRB. Can’t an employer determine how its employees may behave on social media during work time? Why can’t an employer prohibit an employee from speaking negatively about it? Can’t an employer prohibit employees from speaking to or about other employees in a way that might constitute harassment, discrimination or bullying? This is a very confusing area of employment law! Many feel that the NLRB has not provided much guidance. Let’s see if we can get a nugget or two of clarity after the jump!
The good news is I am not going to discuss every NLRB social media case or memorandum from the last few years. That is partly for selfish reasons. I start getting a headache when I do—and, frankly, many of them start to sound too much alike! Having said that, here is the moment where I once again sound like a broken record: Section 7 of the National Labor Relations Act affords all employees — not just union members– the right to:
” self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities …”
Any employer policy or practice that restricts such rights is vulnerable to a charge of unfair labor practices under NLRA Sec. 8.
Yes, I know, I’ve mentioned this before (specifically here, here, here and here). Why do I keep doing it? Because most of these NLRB decisions do. The NLRB loves Section 7! At times, its interpretation is so expansive it feels like that elastic waistband that has stretched it you can no longer wear snap back. Here are some policies or practices that are likely to place you on the NLRB’s radar:
- Requiring that all social media posts be “completely accurate and not misleading”. The NLRB says this requirement could reasonably be interpreted by an employee to include criticisms of their employer’s labor practices or treatment of employees which are protected as long as they are not maliciously false.
- Telling employees not to reveal any “non-public company information” on any public site could include information about employee’s wages or working conditions, which Section 7 protects.
- Requiring employees to get permission before posting anything about the employer is also seen by the NLRB as having a potentially chilling effect on employees exercising their rights to discuss working conditions or come to each other’s mutual aid and protection under Section 7.
- Barring all offensive language or disparaging comments according to the NLRB, could include statements criticizing the employer’s policies or practices or otherwise discussing working conditions, which is protected under Section 7.
- Similarly, telling employees “think carefully before you ‘friend’ co-workers”, could, according to the NLRB, interfere with Section 7 activity.
- Requiring that employees “report any unusual or inappropriate internal social media activity” could encourage employees to report union activity, which interferes with Section 7 rights.
- Encouraging workers to “resolve concerns by speaking with co-workers supervisors or managers”. Really? Why? According to the NLRB, it is likely to result in impeding employees in seeking redress through alternate forums, which—you guessed it– is protected under Section 7.
- Barring all social media postings or contact with government agencies regarding the company. (By now you don’t need me to tell you why, do you? 🙂
OK, that’s enough don’ts! Here are some things you can include in your policies and practices:
- a specific statement that activities protected under Section 7 of the NLRA are specifically excluded from the list of otherwise prohibited activities;
- prohibitions against any non-commercial use of company logos or trademarks even while they are engaging in otherwise protected activity;
- statements urging employees to respect all copyright and relevant intellectual property laws. As of today, the NLRB has not found any justification under the NLRA for not doing so.
- prohibitions against online bullying, harassment, discrimination and retaliation;
- prohibitions against unauthorized postings in the name of the company;
- prohibit against representations employees’ statement are the opinion or policy of the employer;
- specific examples of what is prohibited, using examples of clearly illegal or unprotected conduct when possible.
Before we get going, we need to make an important distinction: NLRB cases, while they will often strike down a policy, may uphold a termination or other form of discipline an employer takes based on the policy. How does that work? Here is an example: A nonprofit organization fires an employee who makes statements on Facebook that could jeopardize the program’s funding and the safety of the population it serves. The employee’s statements are not protected under Section 7, so firing the employee is lawful. The underlying policy, however, if it contains a broad restriction on negative, defamatory or, say, “unprofessional” types of statements using social media is probably unlawful. This is more or less how the Administrative Law Judge in Richmond District Neighborhood Center v. Ian Callaghan, ruled late last year. Similarly, in Karl Knausz Motors Inc, the NLRB found that a BMW salesman who posted sarcastic comments and photos on Facebook about another salesman who allowed a customer’s 13-year old son to sit behind the wheel of a car, causing property damage and injury was not protected activity. It did not relate at all to work conditions, and he posted completely on his own and therefore was not concerted, protected activity.
Well, I hope this gave at least a faint glimmer of hope! Whatever you do, please have your policies reviewed by competent counsel!
Next week on The Emplawyerologist: What’s up with Northwestern University football players and their fight to unionize? Should you as an employer care, and if so, why? In the meantime, what do you think of the efforts of the employer in the clip below, to monitor his employees’ social media activities? Talk amongst yourselves–discuss!!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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