By Eric B. Meyer
On Friday night, I read the just-released National Labor Relations Board‘s Acting General Counsel report on social media investigations. In fact, I read it twice cover-to-cover. (No, I won’t be winning the “Coolest Person In America” Award this year).
Dorkiness aside, I was able to distill the report down to the points that employers will need to know if they hope to avoid federal scrutiny.
The report focuses on two areas:
- Employer conduct that would be viewed as interfering with protected concerted activity (i.e. behavior covered under Section 7 of the National Labor Relations Act (the “Act”).
- Where an employer acts “to interfere with, restrain, or coerce employees” in the exercise of their Section 7 rights, which include the right to self-organize, form, join, or assist unions. This is covered under Section 8(a)(1) of the Act.
Remember, it does not matter whether or not the workplace is unionized. The Act covers most private-sector employees.
What employers can and can’t do
Section 7 of the Act does not preclude employers from disciplining employees for inappropriate online behavior, when there is no protected concerted activity (i.e., no other employees are involved and the online comments do not reference terms and conditions of employment). That said, there are a lot of ways for employers to get themselves into trouble:
- Except in very limited circumstances, you can’t discipline employees who discuss workplace responsibilities and performance together online — even if the online conversation includes swearing, sarcasm or insults.
- You can’t discipline any employee who seeks input online from a co-worker about a dispute at work.
- You can’t discipline an employee for clicking the “Like” button on Facebook.
- You can’t discipline an employee who continues the course of concerted activity that began in the workplace by vocalizing the sentiments of his co-workers online.
Overly broad social-media policies are also likely to draw NLRB scrutiny for violating Section 8(a)(1) of the Act.
- You can’t generally prohibit employees from discussing the company, its employees or competitors (even if the comments are disparaging).
- You can’t prohibit employees from posting pictures of themselves online, which depict the employer in any way.
- You can’t prohibit employees from using social media in a way that “may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of that person.”
- You can’t have a rule generally prohibiting “offensive conduct,” “harassment,” “defamation,” “inappropriate discussions,” “rude and discourteous behavior,” or other embarassing posts.
- You can’t blanketly prohibit employees from using the Employer’s logos or photographs.
Don’t scrap that social media policy
This is still a developing area. The NLRB’s position on social media has not been tested in the courts.
And there is nothing in the GC report which precludes an employer from having a social media policy. It just can’t be broad. Something that is more carefully tailored to serve a legitimate business interest which, at the same time, is not intended to chill the right to organize should work.
Another option is a catchall provision. Although I have yet to see this tested, I imagine it could solve the problem; something like, “Notwithstanding the foregoing, nothing in this policy shall be construed to limit, in any way, your rights under any applicable federal, state or local laws.” Or go one step further and reference rights under the National Labor Relations Act specifically.
But before you do anything, consult an attorney. Each situation has its own unique facts and none of this is intended to be legal advice.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.