Social media platforms provide new and convenient ways for employees to discuss working conditions and engage in other protected activities. Given the collective nature of social media, employers must carefully comply with the National Labor Relations Act (the “Act”) if they want to effectively implement company-wide social media policies.
The stated goal of the National Labor Relations Board (“NLRB”) is to ensure that employers are not violating Section 8(a)(1) of the National Labor Relations Act (the “Act”) by implementing a work rule that would “reasonably tend to chill employees in the exercise of their Section 7 rights.” In particular, the NLRB has focused on the precise wording and language used in employment handbooks. Although the NLRB’s yardstick in this area is apparently flexible rather than rigid, a careful understanding of applicable NLRB opinions can help employers regulate social media usage more effectively.
Employer Policies and the NLRB Boeing Standard
The Act prohibits employers from infringing on employees’ rights to discuss their employment. The Act further protects the right of employees to engage in “concerted activity” with respect to wages and working conditions. Clearly, if a policy is developed in response to union activity or employed to restrict employees from engaging in concerted activities, the NLRB will view the policy to be violative of the Act. However, when the NLRB evaluates a facially neutral policy, rule, or handbook provision that may interfere with the exercise of NLRA rights, it will employ the Boeing standard detailed below.
Pursuant to the Boeing standard, the NRLB will evaluate two things: “(i) the nature and extent of the potential impact on NLRA rights; and (ii) legitimate justifications associated with the rule.” Additionally, the NLRB has laid out three categories of employee handbook rules to provide greater clarity and certainty to employees, employers, and unions.
Category 1. Category 1 includes rules that are lawful “because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.” For example, category 1 includes prohibitions on speaking on behalf of the employer online and rules requiring employees to abide by basic standards of civility.
Category 2. Category 2 includes rules that “warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.” For example, category 2 includes broad privacy rules that may be lawful in workplaces handling confidential patient information, but unlawful in workplaces that engage in clothing sales.
Category 3. Category 3 includes rules that are unlawful “because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.” For example, category 3 includes rules that prohibit employees from discussing wages and speaking negatively about their employer.
Effectively Implement Category 2 Social Media Policies
The NLRB has released numerous advice memoranda (i.e., prior NLRB decisions) detailing how it determines the category of employee handbook rules and if such rules are lawful under the Boeing standard. Typically, the NLRB’s discussions focus on the determination of category 2 rules as lawful or unlawful.
Social Media Policies. In such advice memoranda, the NLRB found lawful the Bemis Company’s social media rule requiring employees “to exercise judgment in their [online] communications relating to [the employer] so as to effectively safeguard the reputation and interests of [the employer].” In contrast, the NLRB found unlawful Boeing’s policy that stated employees’ “[p]articipation in social networking and other online activities must not negatively affect . . . the [employer’s] business interests.” Given the foregoing, when evaluating employer social media policies, the NLRB now considers whether the social media policy at issue is similar to that of Bemis or Boeing.
Non-disparagement Provisions. Frequently, employees’ social media activities trigger employers’ non-disparagement provisions. Employers should note that the NLRB has found clauses that prohibit employees from criticizing, ridiculing, or disparaging the company (i.e., in effect, the employer) to unlawfully interfere with their Section 7 rights. To increase the effectiveness of such provisions, employers should limit their non-disparagement policies to criticism of other employees, customers, and the employer’s products and services.
Savings Clauses. An unlawfully broad category 2 rule may not be saved by a provision stating that no rule in the employee handbook interferes with Section 7 rights. To cure a workplace rule that otherwise unlawfully impacts Section 7 rights, the savings clause “must do more than generally refer to the Act or Section 7 rights.” An effective savings clause must address the broad array of rights protected by Section 7 and “be prominent and proximate to the rule that it purports to inform.” The NLRB has found saving clauses to be ineffective where they did not include the full array of rights because, among others issues, the clause only addressed communications with “co-employees” and not with “third parties, such as unions.”
As demonstrated by the above discussion, it is important that employers exercise considered judgment in implementing or revising a company’s social media usage policy. The NLRB has created a minefield for employers seeking to regulate their employees’ social media usage. Without a thorough understanding of NLRB rulings, an employer may inadvertently run afoul of the law in trying to control employee social media usage.
Protecting Employers’ Social Media Policies
It is critical that employers seek legal counsel before introducing or revising social media usage policies. If you are interested in learning more about this topic or crafting a company-wide social media policy, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
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This blog post was originally published in 2013 and updated on December 21, 2021.
Photo by Austin Distel on Unsplash
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