This artcile first appeared in the March/April issue of ID. View it here.
New Guidelines for Facebook, Twitter, and Other Social Media Postings
Most private sector employers are subject to the National Labor Relations Act (the “Act”), a 1935 federal statute that governs traditional aspects of labor law such as collective bargaining, strikes, and changes of unfair labor practices, while also defining lawful employer conduct toward private sector workers.
In late January, 2012, in an effort to keep up with the times, the National Labor Relations Board (the “Board”) issued a report to Employers (the “Report”), providing guidelines on when and how policies on workplace social media (as well as Facebook, Twitter, and other public cyberspace posting services) might run afoul of the Act, and land a private sector employer in hot water.
Social media has transformed how American businesses and employers communicate, advertise and go to market. Some communications professionals even suggest that companies who don’t use social media to build their brands and customer relationships are at a competitive disadvantage. Labor unions and employees also exploit social media tools to interface with their constituents, coworkers, and friends. In addition, employees routinely use social media to “comment” on workplace issues.
Hence, the Board’s Report and the challenge: For more than a half century, labor law has prohibited employers from interfering with, disciplining, or discharging employees for engaging in “protected, concerted activity,” including communications about their company involving co-workers. The Board has now extended this protection to include employee use of social media.
The Report details fourteen recent cases which include “various online technology tools that enable people to communicate easily via the internet to share information and resources.” The key legal issue in each of these cases is whether adverse employment action and/or employment policies violate Section 7 of the Act – where employees are guaranteed the right to “form, join, or assist unions,” and “to engage in other concerted activities for their mutual aid and protection” (such as seeking co-worker support for perceived management indiscretions). Simply put, employers cannot interfere, restrain, or coerce employees in exercise of their Section 7 rights, including disciplining them or discharging them for doing so. The Report details a handful of cases where the Board has found that an employee was unlawfully discharged for exercising his or her right to protected communication by posting on Facebook or Twitter. The Report underscores three main points in this evolving area of the law:
• An employee’s comments on social media are more likely to be protected where they involve a group, co-worker discussion of the terms and conditions of employment, such as wages, benefits, and disciplinary complaints.
• An employee’s comments on social media are generally not protected by Section 7 of the Act if they are mere gripes not made in relation to employee “group activity.” A typical instance of this kind might be where many employees chime in to support a particular employee’s position that certain employer conduct (e.g., raises, disciplinary action, supervisor complaints, etc.) is believed to be unfair.
• Social media policies and similar employment policies are often inextricably intertwined in claims of Act violations, so policy statements must be balanced to ensure they don’t (even inadvertently) prohibit the kinds of activities protected by Section 7.
To avoid outright contravention of the Act as to the content of the employment policies themselves, the policymakers must avoid any statement that the Board can identify as “chilling” employees in the exercise of their Section 7 rights. The Board’s Report identified several such violative policies, such as those limiting “disrespectful conduct,” “inappropriate conversation,” or “unprofessional communication that could negatively impact….”
Overbroad and illegal employment policies are not new to the Board. For years, the Board has found unlawful workplace policies that range from non-solicitation/non-distribution and confidentiality provisions to non-disparagement and non-fraternization policies; these standards now extend to employer rules regarding social media. In some circumstances, employee disciplinary action or discharge pursuant to an unlawfully overbroad policy can violate the Act. Ultimately, employers need to ensure that their employment policies and handbooks do not run afoul of the Act. Two key points:
• Employers must make certain that employment policies balance legitimate business interests (like protecting trade secrets and proprietary information) without restricting the rights of employees to discuss wages, hours, and other terms or conditions of employment.
• Employment policies should carefully and narrowly define proscribed conduct, without even inadvertently referencing restrictions on Section 7 rights; they should also contain a savings clause to clarify that the intent of the policy is not to trample on Section 7 rights.
Even though union activity in the U.S. may have waned in recent years, the Board is intent on ensuring that all employers comply with the Act. Effective April 30, 2012, the Board has made it mandatory for almost all employers in the private sector to post an Employee Rights Notice to ensure that employees are aware of their rights under the Act (although this matter may get tied up in court). The upshot is that private sector employers should not only be conscious of the scope of the Act, but also take steps to ensure that their policies and conduct are in full compliance with the Act.
Fred Mendelsohn conducts a business litigation practice in Chicago with a concentration in labor and employment law. Please direct any questions you may have to Fred at [email protected].