Employers looking to implement policies governing the use of social media by employees in the workplace will have to devise policies that do not conflict with the National Labor Relations Act ("NLRA"), which may be challenging to accomplish. The National Labor Relations Board ("NLRB"), which is the agency charged with enforcing the NLRA, issued a recent opinion that warns employers about improper use of social media policies, while also providing helpful guidance for employers looking to implement such policies.
The NLRA protects employees' right to discuss and share information regarding the terms and conditions of their employment, even in non-unionized settings, which is conduct referred to as "concerted activity." Any employer rule or policy that interferes with employees' right to engage in a concerted activity, such as discussing wages and working conditions with co-workers, will be considered unlawful under the NLRA. If an employer actually disciplines an employee for violating an unlawful policy that obstructs a concerted activity, the employer may be subject to liability for unfair labor practices.
This protection raises complicated issues in the context of social media policies. The very nature of social media is that it allows individuals to communicate and spread information to a wide audience instantaneously, which often can become a permanent fixture on the Internet. As a result, employers have legitimate concerns regarding how employees use social media, particularly with respect to the disclosure of confidential information, the portrayal of the company, and the treatment of co-workers.
According to the NLRB, a social media policy that could reasonably be construed to "chill" employees in the exercise of their right to engage in concerted activities may be found unlawful. In preparing a policy, the NLRB cautions employers against framing overbroad and ambiguous social media policies because employees could interpret them as including and, thus, prohibiting lawful concerted activity. Therefore, it is imperative that employers specifically identify and provide examples of the conduct they seek to limit in order to reduce any risk of confusion.
For example, a social media policy that prohibits the disclosure of "conditional information," without identifying the specific information, could be found unlawful because employees might construe the language as restricting the disclosure of information about their employment, such as wages. The policy should define and specify the scope of confidential information, such as information regarding company reports, systems, technology, and strategy.
Consider, also, a policy that restricts employees from expressing their personal opinions and dissatisfaction regarding the workplace, or prohibits "inappropriate posts" regarding co-workers and management. Such restrictions could also be viewed as curbing protected activities. The policy would need to qualify the restricted conduct, such as prohibiting posts that include discriminatory, harassing, and threatening language, or posts that contribute to a hostile work environment based on a protected category. Similarly, a policy that requires employees to be "respectful" when on social media should specifically prohibit conduct that is malicious, obscene, or threatening. The policy could require employees to show proper respect for the employer's intellectual property. The policy could also prohibit employees from making posts as statement of policy of the employer or on behalf of the employer.
While the NLRB provides several case studies in the recent opinion which provide specific guidance depending on the content of the social media policy, the bottom line is that because the NLRB is rigorously scrutinizing employers' social media policies, employers should review existing policies to ensure compliance and be aware of the NLRB's concerns when preparing any new social media policies.