Social media in the workplace and the NLRB’s latest policy

  • By: Ruth Evans, Owner of The Evans HR GROUP

Social media in the workplace can be a great thing or an employer’s worst nightmare.  With the scrutiny that the NLRB is placing on social media and any other company policies that are included in a social media policy, it is important that all employers reassess their internal policies and practices. 

The Acting Attorney General (AGC) of the National Labor Relations Board (NLRB) has issued his third report on social media in the workplace.  In this report, the AGC reviewed seven employer social media policies under the National Labor Relations Act, and provided examples of language that he considers not legal, followed by explanations of what could be done (if anything) to make the policy acceptable.

The AGC wants to make sure that employers do not violate employees’ rights under Section 7 of the NLRA which allows them to discuss their terms and conditions of employment with co-workers, even on Facebook.  Section 7 protects concerted activity, which means activity “engaged in, with or on the authority of other employees, and not solely by and on behalf of the employee himself.”  It also includes those instances where an individual employee tries to enlist other employees to join in a group action or to file a group complaint with the employer.   Wow!  Sounds pretty far-reaching.

The AGC said that a social media policy may violate Section 8 (a) of the Act if it “would reasonably tend to chill employees in the exercise of their Section 7 rights”.  The policy language cited by the NLRB that may be illegal and may be cause for a complaint to be issued include such examples as:

  • Prohibiting posts discussing the employer’s non-public information, confidential information, and legal matters;
  • Prohibiting employees from harming the image and integrity of the company, making statements that are detrimental, disparaging or defamatory to the employer; and prohibiting employees from discussing workplace dissatisfaction;
  • Prohibiting posts that are inaccurate or misleading or that contain offensive, demeaning or inappropriate remarks; and instructing employees to use a friendly tone and not engage in inflammatory discussions;
  • Requiring employees to secure permission prior to posting photos, music, videos, quotes and personal information of others;
  • Prohibiting the non-commercial use of employer’s logos or trademarks;
  • Discouraging employees from “friend-ing” co-workers;
  • Prohibiting online discussion with government agencies concerning the company;
  • Encouraging employees to solve work problems in the workplace rather than posting about such problems online; and
  • Threatening employees with discipline or criminal prosecution for failing to report violations of an unlawful social media policy.

This list should give employers some major heartburn.  On a positive note, the AGC did explain that a policy is more likely to avoid violating an employee’s right to engage in concerted activity if it “provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rules to prohibit Section 7 activity.”  On another positive note, the AGC provided a sample policy for employers to follow. 

The actual AGC report on the NLRB website provides specific policy language that they find to be unlawful followed by the AGC’s explanation.  An example from an actual social media policy and the AGC report is:

Respect privacy.  If during the course of your work you create, receive or become aware of personal information about the Company’s employees, contingent workers, customers, customers’ patients, providers, business partners or third parties, don’t disclose that information in any way via social media or other online activities.  You may disclose personal information only to those authorized to receive it in accordance with the Company’s policy.

The AGC found the portion of the rule prohibiting disclosure of personal information about the Employer’s employees and contingent workers unlawful because, in the absence of clarification, employees would reasonably construe it to include information about employee wages and their working conditions.  However, he found that the portion of the rule prohibiting employees from disclosing personal information only to those authorized to receive it is not, in these circumstances, unlawful. 

Another example:

Legal matters.  Don’t comment on any legal matters, including pending litigation and disputes.

The AGC found that the “prohibition on employees’ commenting on any legal matters is unlawful because it specifically restricts employees from discussing the protected subject of potential claims against the Employer.

Scary. The bottom line: review your social media and related policies and compare to the sample policy provided by the AGC.  Avoid policy statements that are ambiguous, and provide examples that clarify and restrict the scope of your policy statements.  By doing so, employees will not unreasonably construe your policy to cover protected activity. 

The AGC’s report and sample policy can be found on the NLRB website.

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