Employers Should Pay Heed to New NLRB Standards For Social Media Policies

Employers Should Pay Heed to New NLRB Standards For Social Media Policies

By Abena P. Sanders

The National Labor Relations Board (NLRB) is the federal agency tasked with enforcing the National Labor Relations Act (NLRA). In August 2011 and in January 2012, NLRB Acting General Counsel Lafe Solomon issued reports presenting case developments arising in the area of social media (Facebook®, Twitter®, LinkedIn®, Myspace®, Tumblr®, Instagram® etc.). Later, the agency noted that the increased use of social media in or respective to the workplace led to widespread employer concern, which in turn prompted employers to draft or revise their social media policies. On May 30, 2012, the Acting General Counsel issued an “Operations Management Memo” on social media cases, this time training his eye on policies governing the use of social media by employees.

In general, the NLRB finds employer policies and procedures to be unlawful when they interfere with the rights of employees under the NLRA, such as the right to discuss wages and working conditions with coworkers. Section 7 of the NLRA protects the rights of employees “to self-organization, to form, join or assist labor organizations … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Additionally, employers may not “interfere with, restrain, or coerce employees in the exercise of” protected rights.

While this may seem like a stretch to many employers, the NLRB believes that in many cases an employee’s “tweet” or Facebook posting—particularly when seen by one or more other employees—could address a collective employee concern. Therefore, certain social media interactions could in fact be considered protected concerted activity. In such cases, the NLRB prohibits social media policies that could reasonably “be construed to chill the exercise of Section 7 rights in violation of the Act.”

One of the more surprising cases evaluated in the General Counsel’s Operations Management Memo involved confidentiality. In that case, an employer’s social media policy, located within its employee handbook, stated that employees must not “release confidential guest, team member or company information.” The NLRB found this section of the handbook to be unlawful because it could be “interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the condition of employees other than themselves,” which is prohibited by the NLRB. By contrast, however, an employer may implement a social media policy requiring employees to maintain the confidentiality of the employer’s “trade secrets,” because employees have no protected right to disclose such information.

Given that the NLRB has indicated its intent to target social media policies aggressively, employers should avoid running afoul of the NLRA by crafting social media polices that contain “limiting language or context to clarify that the rules do not restrict Section 7 rights.” To that end, employers should provide clear examples and definitions of policy terms (e.g., an employer could lawfully prohibit the disclosure of “information regarding the development of systems, processes, products, know-how, technology, internal reports, procedures or other internal business-related communications”). Further, under no circumstances should a social media policy use language that could be viewed as restricting an employee’s right to discuss wages and working conditions. Though experts in this area believe that the General Counsel’s stance will be challenged in the courts, employers should make a renewed effort to stay out of the NLRB’s crosshairs when it comes to the drafting or revising of social media policies.

Abena Sanders is an associate in the Atlanta office of Fisher & Phillips. Her practice focuses on the representation of management in employment litigation and administrative proceedings arising under state and federal anti-discrimination laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act and the Equal Pay Act. She has extensive experience defending employers before state and federal state trial courts, as well as before governmental agencies such as the EEOC, NLRB and OSHA.